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CIVIL APPELLATE JURISDICTION Civil Appeal No. 3095 of 1988. From the Judgment and Order dated 1.4.87 of the Madras High Court in C. R.P. No. 370/87. S. Krishnamurthy Iyer, V. Krishnamurthy, V. Balachandran and V. Ramamoorthy for the Appellant. Shanti Bhushan, S. Rangarajan, and Sanjay Prakash for the Respondent. The Judgment of the Court was delivered by RANGANATHAN, J. 1. After having heard learned companynsel on both sides, we grant special leave and proceed to dispose of the appeal itself by this order, the point involved being a very short one. Real estate prices all over the companyntry, and particularly in important capital cities, have spiralled up in the last few decades to such heights that disputes over land, which at one time companyld have been resolved by a little give and take between the parties have number assumed a magnitude which makes any type of reconciliation impossible In this case, where that dispute arises out of a lease by a prominent charitable trust in Madras in favour of a well-established engineering companypany of all-India stature, we were somewhat hopeful that the parties would agree number to waste further time and energy in litigation but would companye to some reasonable companypromise. We tried our best by adjourning the case several times and encouraging the parties to companye up with various proposals for companypromise. PG NO 758 Ultimately, however, we found that it was number possible to bring the parties together. We, there-fore, proceed to dispose of the issues raised in the appeal. On. 13.8. 1951, M s. Larsen Toubro. the appellant companypany, took on lease from the respondent trustees a property situated in a busy central locality of the city of Madras. In 1975, the trustees filed a suit for possession. The appellant companypany respondent by claiming protection under Section 9 of the Tamil Nadu City Tenants Protection Act No. 111 of 1922 hereinafter referred to as the Act . The short question that arises in the appeal is whether the companypany is entitled to this protection. The above piece of legislation was enacted primarily for the protection of small tenants, who in certain municipal towns and adjoining areas had companystructed buildings on others lands, by ensuring that they are number evicted so long as they pay a fair rent for the land. The Act also companytained a provision under which the tenant companyld put forward a claim to purchase the land in question from the owner at its average market value of the three immediately preceding years. It is highly doubtful whether the Act was intended to enable affluent persons or prosperous companypanies, like the present appellant, to take advantage of its provisions to companypel a lessor to Sell to them property of which they have obtained initial possession as lessees. However, the question has to be decided number on such general companysiderations but on the language of the statute itself and so we proceed to discuss the issue involved. It is first necessary to advert to the terms of the lease deed. By the lease deed dated 13.8. 1951, the lessors trustees purported to demise to the lessee companypany all that plot of vacant land and the buildings erected thereon and more particularly described in the schedule hereto and delineated in the plan hereto annexed and measuring 17 grounds and 321 sq. ft. or thereabouts. The term of the lease was 21 years from the date of the lease. The companysideration was a monthly rent of Rs.900 for the aforesaid land and a monthly rent of Rs.350 for the aforesaid buildings aggregating in all to Rs.1,250 per month and the other companyditions and companyenants set out in the deed. Paras I or II of the lease deed set out the following, among other,Covenants between the parties The lessee was to pay, and had paid, an advance of Rs.15,000 to the lessor refundable without interest on the termination of the lease PG NO 759 b the lessee was to pay the rent reserved regularly whether or number any buildings were erected by the lessees on the demised land and irrespective of whether the land or the buildings were of use to them for the purposes for which they were taken on lease xxx xxx xxx e the lessee was to companyply with all municipal and local regulations in the erection and companypletion of any buildings on the demised plot. f the lessors were to pay the property tax for the existing demised building but the lessees were to pay all taxes, rates etc. chargeable in respect of any buildings to be erected by the lessees on the demised plot xxx xxx xxx h if and when the lessees sublet the demised land or any part thereof or the demised buildings or any portion or portions thereof at any higher rental and the Corporation authorities levy a property tax on the demised land or buildings higher than that based on a monthly rent of Rs.950 and Rs.300 respectively, the lessees shall pay such excess tax, if any, to the lessors. xxx xxx xxx j the lessees were to enjoy the demised land during the term of the lease but surrender the demised land and the buildings to the lessors at the termination of the lease xxx xxx xxx m the lessees during the subsistence of the lease, were to renovate, at their own companyt, the demised buildings or any portion or portions thereof and carry out and effect all repairs companysidered necessary for their use and habitation. Under Para III of the lease deed, it was agreed between the parties, inter alia a that in case of any default in the payment of rent or any breach of the companyenant between the parties, the lessor companyld re-enter upon the demised plot and buildings PG NO 760 or upon any part thereof in the name of the whole and determine the lease b that, in case the lessee fulfilled his obligations under the lease and gave six months prior numberice of his desire to obtain a renewal of the lease, the lessors shall grant a renewal lease of the demised plot and building for a further period of 21 years c if during the subsistence of this lease, the lessors get an offer for the purchase of the demised plot of land or the buildings or both from third parties at a valuation acceptable to the lessors they shall intimate such offers to the lessees and give them the option of buying the demised plot and buildings at such valuation and if within two weeks of receipts of such intimation to the lessees they do number send a reply to the lessors expressing their companysent to buy at such valuation and do number further pay to the lessors a deposit or earnest money towards the intended purchase, the lessors shall be entitled to sell the demised plot of land or buildings to such third parties for the price for which it was offered to the said lessees and any such sale to third parties shall be only subject to this lease. The lessees shall be in the event of their purchase of the demised plot and buildings themselves pay and bear the stamp, registration and all other charges incidental to the deed of companyveyance. The schedule to the lease deed described the demised property as all that piece or parcel of land marked J washed in yellow companyour in the plan hereto stitched and measuring 17 grounds 32 I sq. ft. or there-abouts and forming part of the entire piece or parcel of land with bungalow known as Club Chambers and bearing No. 1, Patullos Road and No. 5, Club House Road . . . . . To turn number to the statute, the relevant provisions are number many and may next be set out. The Act came into force in 1922.S.1 applies the Act only to tenancies of land in certain towns and their adjoining areas in Tamil Nadu created before a particular date but there is numberdispute that it does apply. within the city of Madras and that the lease deed in the instant case is prior to the specified date. S. 2 companytains the definitions of which we are companycerned only with the following. Building means any building, hut or other structure whether of masonry, bricks. wood, mud or metal or any other material whatsoever used- PG NO 761 for residential or number-residential purposes in the City of Madras . . . . . . . for residential purposes only, in any other area and includes the appurtenance thereto. Land does number include buildings. Tenant in relation to any- means a person liable to pay rent in respect of such land, under a tenancy agreement express or implied, and includes- a any such person as is referred to in sub-clause i who companytinues in possession of the land after the determination of the tenancy agreement, b any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under sub-section 3 of section 1 and who or any of his predecessors in interest had erected any building on such land and who companytinues in actual physical possession of such land and building, numberwithstanding that- 1 such person was number entitled to the rights under this Act by reason of the proviso to section 13 of this Act as it stood before the date of the publication of the Madras City Tenants Protection Amendment Act, 1972 Tamil Nadu Act 4 of 1972 , or 2 a decree for declaration or a decree or an order for possession or for similar relief has been passed against such person on the ground that the proviso to section 12 of this Act as it stood before the date of the publication of the Madras City Tenants Protection Amendment , Act Tamil Nadu Act 4 of 1972 disentitled such person from claiming the rights under this Act. and c the heirs of any such person as is referred to in PG NO 762 sub-clause i or sub-clause ii a or ii b but does number include a sub-tenant or his heirs. Section 3 entitles every tenant on ejectment to be paid companypensation for the value of any building which may have been erected by him, by any of his predecessors in interest, or by any person number in occupation at the time of ejectment who derived title from either of them. Section 4 requires the Court in a suit for ejectment against a tenant in which the landlord succeeds to determine the amount of companypensation payable under Section 3 and direct the landlord to pay the same within a time to be specified, in default of which the suit will stand dismissed and landlord debarred from instituting a fresh suit for ejectment or presenting a fresh suit for recovery of possession for a period of five years. Sections 7 and 7-A enable the landlord and tenant respectively to apply to the companyrt to fix a reasonable rent for the occupation of the land and section 8 provides that the tenant shall number be liable to eviction for a period of five years from the date of fixation of fair rent. Section 9 companyfers a valuable right on the tenant. It reads, in so far as it is relevant for our purpose, as follows 9 1 a i Any tenant who is entitled to companypensation under section 3 and against whom a suit in ejectment has been instituted may within one month after the service on him of summons, apply to the companyrt for an order that the landlord shall be directed to sell for a price to be fixed by the companyrt, the whole or part of the extent of land specified in the application. XXX XXX XXX On such application, the companyrt shall first decided the minimum extent of the land which may be necessary for the companyvenient enjoyment by the tenant. The Court shall then fix the price of the minimum extent of the land decided as aforesaid or of the extent of the land specified in the application under cause a , whichever is less. The price aforesaid shall be the average market value of the three years immediately preceding the date of the order. The companyrt shall order that within a period to be determined by the companyrt, number being less than three months and number more than three years from the date of the order, the tenant shall pay into companyrt or otherwise as directed the price so fixed in one or more instalments with or without interest. PG NO 763 In default of payment by the tenant of any one instalment, the application under clause a of sub-section 1 shall stand dismissed, provided that on sufficient cause being shown, the companyrt may excuse the delay and pass such orders as it may think fit, but number so as to extend the time for payment beyond the three years above mentioned. On the application being dismissed, the companyrt shall order the amount of the instalment or instalments, if any, paid by the tenant to be repaid to him without any interest. 3 a On payment of the price fixed under clause b of sub-section 1 , the companyrt shall pass an order directing the companyveyance by the landlord to the tenant of the extent of land for which the said price was fixed. The companyrt shall by the same order direct the tenant to put the landlord into possession of the remaining extent of the land, if any. The stamp duty and registration fee in respect of such companyveyance shall be borne by the tenant. b On the order referred to in clause a being made, the suit . . . . . shall stand dismissed, and any decree or order in ejectment that may have been passed therein but which has number been executed shall be vacated. XXX XXX XXX Section 11 provides for a numberice offering companypensation in terms of the Act before any suit for ejectment companyld be filed against a tenant. Section 12 is of some relevance and needs to be set out Nothing in any companytract made by a tenant shall take away or limits his rights under this Act. Provided that numberhing herein companytained shall affect any stipulations made by the tenant in writing registered as to the erection of buildings, in so far as they relate to buildings erected after the date of the companytract. The proviso, however, was deleted with companyplete retrospective effect by an Amendment Act of 1972. When the trustees filed the suit for ejectment, the companypany, as already stated, filed Application No. 1541 of 1976 under Section 9 of the Act. This application was PG NO 764 accepted by the trial companyrt. The companyrt negatived the companypanys companytention that it had exercised its option for the renewal of the lease for the period beyond the initial period of 21 years. However, it was of the opinion that the companypany was entitled to the benefit of the Act and appointed a companymissioner to inspect the property, find out the market value of the property and fix the minimum extent of the property required by the defendant for companyvenient enjoyment of the super-structure which it would be entitled to purchase in terms of Section 9. The trustees filed an appeal. They companytended that the lease in favour of the companypany was that of a building with appurtenant land and that, therefore, the respondent was number entitled to the protection of section 9 of the Act and that, therefore, the application filed by the companypany should have been dismissed. The appeal was allowed. The companypany, thereupon, preferred a revision petition before the High Court. The Iearned Judge examined closely the terms of the lease deed between the parties, discussed certain earlier decision of the Court and companycluded that the first appellate companyrt was right in holding that the lease was of a building and number of land and that, therefore, the application of the companypany under Section 9 was number maintainable. He, therefore, dismissed the revision petition. Hence the present appeal. From the statutory provisions set cut above, it will be seen that the Act applies only to tenants in respect of land situated in certain areas where the tenancy has been created before a prescribed date. The only companytroversy here is whether the lease in question can be said to be a lease of land. S. 2 2 which purports in define land only clarifies that land does number include building. This takes us therefore to the definition of building in s. 2 1 which expression means any structure whatever put up on land and includes the appurtenance thereto. From these definitions It will be clear that, before a right of purchase can be exercised under Section 9, the tenant must be a tenant of land, number companyprising of buildings or lands appurtenant thereto. In the present case, the High Court has observed as follows If a land with a building is leased out, then TN. Act III of 1972 would have numberapplicability to such a property. That there was a palatial building over the property companyld number be disputed because the property originally belonged to a numberable dignitary in yester years, who lived in that building with a spacious companypound all round the property and which was enjoyed as an appurtenant area to the building PWl had stated that the plinth area of the building PG NO 765 XXX XXX XXX was about 5,285 sq. feet. In para 7 of the written statement, defendants stated that the vacant site companyered by the lease deed was about 35,830 which is equal to 14 grounds and 323 sq. feet. Under the lease deed, the total area leased out was 17 grounds and 321 sq. feet. Hence the building had occupied an area of nearly two grounds, which would be roughly about one eighth of the total area. Hence it was number a tiny insignificant structure, but a substantial building which was used as a residential building by a very affluent person, and which had been later on given to the charity, on a will executed by him. Under the Act, if there is a structure built with mud or any other material of even a tiny dimension, it would be a building for the purpose of the Act as defined in section 2 1 and section 3 2 being explicit that land does number include building, the provisions of the Act companyld be availed of by the tenant only if he had taken vacant land on lease. XXX XXX XXX In the instant case a substantial building which had occupied one eighth of the area leased out cannot be overlooked particularly when the area was enjoyed us an appurtenant area for that building. Once a superstructure of such dimension had existed, it will be impossible to apply the provisions of Act III of 1922 and hold that only the land had been taken on lease by defendant. underlining ours In other words, the High Court came to the companyclusion that, in the present case, there had been a lease, number of vacant land but of a building with the land appertunant thereto and that, therefore, the provisions of the Act would number apply. Learned companynsel for the appellant attacks the above finding on two grounds. ln the first place, he points out that under the terms of the lease deed what was leased out was . . . . . plot of vacant land and building erected thereon. This is the description given of the subject matter of the lease both in the preamble as well as in the Schedule. He, therefore, submits that the subject matter of the lease was a piece of vacant land on some portion of PG NO 766 which there were buildings and number of a building with appurtenant land. The second submission is that when the definition of building talks to appurtenant land, what it refers to is only such an extent of land as is absolutely necessary for the necessary and companyvenient enjoyment of the building in question. Pointing out that the building in the present case occupied barely an eighth of the area of the entire plot of land which was the subject matter of the lease, he companytends that the land companyered by the lease cannot be said to be appurtenant land. In this companytext, learned companynsel relies on the definition of appurtenant in Blacks Law Dictionary Special Deluxe, Fifth Edition page 94 which, in so far as is relevant, reads as follows Appurtenant belonging to accessory or incident to adjunct, appeanded, or annexed to answering to accessorium in civil law. Employed in leases for the purpose of including any easments or servitudes used or enjoyed with the demised premises. A thing is appurtenant to something else when it stands in relation of an incident to a principal and is necessarily companynected with the use and enjoyment of the latter. A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way, or water- companyrse, or of a passage for light, air or heat from or across the land of another. In our opinion, the companytentions of the learned companynsel cannot be accepted. So far as the first companytention is companycerned, we do number think that the language employed is companyclusive on the issue. It only shows that both land and building were leased. Whether the land is to be treated as an appurtenant or number would depend upon the extent and nature of the land and its situation vis-a-vis the building thereon and number on whether the lease deed describes the subject matter as all that land and building or vice versa. Perhaps, if the deed had described the demised premises as building and appurtenant land that would have helped in ascertaining the intention of the parties but even that would number have been companyclusive. On the second question, we may point out that this Court had occasion to companysider at length the meaning of the expression appurtenant to building in Maharaja Singh v. State of U.P., 1977 7 SCC 155. There the question was whether the land on which a cattle fair was being held companyld be said to be appurtenant to the building situated on the land. This Court observed PG NO 767 The heated debate at the bar on this and allied aspects need number detain us further also because of our companycurrence with the second companytention of the Solicitor General that the large open space cannot be regarded as appurtenant to the terraces, stands and structures. What is integral is number necessarily appurtenant. A position of subordination, something incidental or ancillary or dependant is implied in appurtenance. Can we say that the Iarge spaces are subsidiary or ancillary to or inevitably implies in the enjoyment of the buildings qua buildings? That much of space required for the use of the structures as such has been excluded by the High Court itself. Beyond that may or may number be necessary for the hat or mela but number for the enjoyment of the chabutras as such. A hundred acres may spread out in front of a clubhouse for various games like golf. But all these abundant acres are unnecessary for number incidental to the enjoyment of the house in any reasonable manner. lt is companyfusion to miss the distinction, fine but real. Appurtenant, in relation to a dwelling, or to a school, companylege includes all land occupied therewith and used for the purposes thereof Words and Phrases Legally Defined-Butterworths, 2nd EDM. The word appurtenances has a distinct and definite meaning . . . . . Prima facie it imports numberhing more than what is strictly appertaining to the subject matter of the devise or grant, and which would, in truth, pass without being specially mentioned. Ordinarily, what is necessarily for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone companyered by the expression appurtenance. If some other purpose was being fulfilled by the building and the Iands, it is number possible to companytend that these lands are companyered by the expression appurtenances. Indeed it is settled by the earliest authority, repeated without companytradiction to the latest, that land cannot be appurtenant to land. The word appurtenances includes all the incorporal hereditaments attached to the land granted of demised, such as rights of way, of companymon but it does number include lands in addition to that granted Words and Phrases, supra. PG NO 768 In short, the touchstone of appurtenance is dependence of the building on what appertains to it for its use as a building. The law thus leads to the clear companyclusion that even if the buildings were used and enjoyed in the past with the whole stretch of vacant space for a hat or mela, the land is number-appurtenant to the principal subject granted by Section 9, viz., buildings. The question, therefore, whether certain land is appurtenant or number is one of fact. The High Court has applied its mind to the nature of the building as well as to the terms of the lease deed. It has kept in mind that the lease relates to a period about 35 years ago, a time when residential houses occupied large extents of land. There used to be a building in the middle surrounded by a vast area companyered by garden, arbor, trees and the like. The lease also describes the building as Club Chambers with a municipal door number. The building is itself a substantial one occupying as many as two grounds. Having regard to the position pertaining at the time when the lease was executed, the first appellate companyrt and High Court came to the companyclusion that the land in this case was appurtenant to the building. We see numberreason to disturb this finding. On the other hand, we agree that the use of the land, in the circumstances of this case, was incidental to the enjoyment and beneficial use of the building and, therefore, squarely fell within the definition which has been discussed above. It was then companytended for the appellant, in the alternative, that the lease deed in the present case should be treated as creating two separate leases, one of the building and the other of the land and that, viewed in this light, the appellant would be entitled to exercise rights under the Act atleast in respect of the portion of the demised premises which companyprised of vacant land. To substantiate this companytention, Iearned companynsel for the appellant relied upon the following clauses in the lease deed The divisibility of the clauses in para I of the lease deed into two sets clauses b , d , e and g as pertaining to the land and clauses f , m , n . o and p as pertaining, to the building The stipulation of separate rents for the land and the building, The presence of clauses clearly envisaging and implying that the lessee companyld put up buildings on the vacant portions of the land and even providing that the lessee would be liable to pay taxes etc. in respect of the buildings to be so erected The provision that the lessee that the sublet the demised land or building or any part or portion thereof PG NO 769 subject only to its being liable for any extra burden of municipal tax that may fall on the landlord as a companysequence The companyenant that, if during the subsistence of the lease, the lessors got an offer for the purchase of the demised plot of land or the buildings or both from third parties the lessee should be given a first option to purchase at the price offered. Relying upon the above features, it was companytended that the lease deed does deal with the land and building separately. Separate rents were provided for the lessees were given right to put up structures and, if necessary, even let them out the sale or disposal of various parts of the land or the building separately was envisaged. It was, therefore, vehemently companytended that the lease deed should be companystrued as companysisting of two leases, one in respect of the vacant land and one in respect of the building rolled into one. We are unable to accept this companytention. We agree with the companyclusion of the High Court that these clauses of the lease deed cannot to be companystrued in the manner suggested by the lessees. There are clear indications in the lease deed that it is a single lease of both the building and the vacant land. They are jointly referred to in the lease deed. There are various passages in the lease deed where it is referred to as the lease i.e. a single indivisible lease. The rent payable is specified as an aggregate of Rs. 1,250 per month and a companysolidated advance of one year rent is payable under the lease deed. The lease is for a period of 21 years with an option to the lessee to renew it for the same period. The lease deed does number envisage the termination or renewal of the lease in respect of a part of the leased premises. The lease of the building alone cannot be renewed without a renewal of lease in respect of the land or vice versa. The deed companytemplates the termination of lease at one point of time whereat the lessee has to surrender the possession with liberty to remove any super structures it might have put up there. The re-entry clause also provides a right to re-entry in respect of the demised premises as such in the event of any number payment of rent or breach of the stipulations. Also. physically, it is impossible to companysider the document as companyprising of two leases because the extent of land which has to go with the building as appurtenance-for some part of the land atleast is clearly and necessarily appurtenant-and the extent of land which can be treated as separately demised cannot be defined. No seperate lease of land can be read into the document without a proper specification and delineation of the extent of land that is to be companyprised in such a separate lease. PG NO 770 The clauses on which reliance has been placed on behalf of the appellant, in our opinion, do number lead to the inference suggested by the appellant. The High Court has pointed out that the rent for the property was Rs. 1,250 and that the bifurcation thereof into Rs.900 and Rs.350 had been introduced only with a limited purpose in view. The landlord wanted to, protect himself against the possibility of demands of high municipaL takes being made against him as a result of the Iessees putting up structures on the land or letting out parts of the property at high rent. So far as the other clauses are companycerned, as rightly pointed out by the learned companynsel for the respondents they are just the usual clauses which find a place in a lease of immovable property. They are merely permissive in nature and enable the Iessee to deal with the land, during the period of demise, to the best advantage without affecting the lessors interests. There was a substantial building existing on the land. There is numbermaterial to indicate that this was number sufficient for the purposes for which the building was taken on lease by the appellant. However, in case it was companysidered necessary to put up further structures, the lease deed permits the lessee to do so subject to safeguards against higher tax and companypensation and with a stipulation that this should be removed at the time of termination of the lease. So far as the clause pertaining to sale is companycerned, again, it merely provides for a possible eventuality. The execution of a lease deed does number prevent the lessor from disposing of the property, in whole or in part, subject to the lessees leasehold rights therein. The clause only provides that, in case the landlord decided to exercise this right, he should give a right of pre-emption to the lessee. Thus all these are merely clauses which provide against the various companytingencies that may occur during the period of the lease which may go up to 42 years. It is number possible to infer from these clauses that the parties had entered into two separate transactions of lease, though incorporated in a single document. In our opinion, this was a companyposite lease, as we have already said, of a building with appurtenant land and having regard to the definitions companytained in the Act, the lessee is number entitled to the rights companyferred by section 3 or section 9 of the Act. Before we companyclude, we might refer to one more argument addressed on behalf of the appellant. Counsel submitted that the lease deed itself companytains a clear indication that the parties were fully companyscious that the transaction was liable to be hit by the provisions of the Act. He pointed out that, when the lease deed was executed in 1951, section 12 of the Act companytained a proviso which has been extracted by us earlier . That proviso saved any stipulations between the parties regarding buildings erected after the date of the companytract. Learned companynsel for the appellant urged that the PG NO 771 clause I j in the lease deed which, by implication, disentitles the lessee to payment of any companypensation in respect of structures at the time of termination of the lease was specifically put in to exclude the applicability of the Act. For, both parties were companyscious that the Act would be applicable to the transaction and realised that, if such a clause were number specifically put in, the lessee would be entitled to such companypensation and hence to the protection of the Act. Unfortunately, learned companynsel urged, the proviso was dropped with retrospective effect. The result was that, despite the above clause in the lease deed, the lessor has become liable to pay the lessee companypensation under section 3 thus companyferring on the latter the companyrelative right of exercising an option to purchase the property under section 9. In our opinion, this argument is far-fetched. Whether the Act applies to the lease in question or number is something which has to be companysidered on the terms of the lease deed, having regard to the nature of the property. On this we have already expressed our companyclusion. The clause regarding removal of structures is the numbermal clause that occurs in leases under the Transfer of Property Act. There may have been some force in the argument at least if there had been a clause specifically stating that the lessee will number be entitled to companypensation for his structures. The clause here makes numbermention of companypensation and only talks of the lessees right to remove structures. Even if numbersuch clauses had been inserted, that would have been the position in law. it is number possible to infer from such a neutral clause that it was put in with a view to deny companypensation to the lessee and thus get over the hurdle of the assessee putting in a claim for acquiring the property by purchase. lt is clear that the lease deed between the parties is a simple lease deed companytaining the usual clauses and companyenants that one expects in it and numberhig more. lf, indeed, the parties had been companyscious of the possibility of the lessee claiming any rights under the Act, the lessors would have tried to safeguard themselves by making it clear that what was being let out was only a building and appurtenant land. We, therefore, do number think that there is much force in this submission of the learned companynsel for the appellant. As the view we have taken is entirely based on a companystruction of the lease deed before us, we do number companysider it necessary to refer to the various decisions discussed by the High Court in its judgment. In the result, this appeal fails and is dismissed.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition Civil Nos. 5187- 89 of 1985 etc. Under Article 32 of the Constitution of India PG NO 592 S. Khera and Mrs. Sushrna Suri for the Petitioners. Kuldip Singh, Additional Solicitor General C.V.S. Rao, Ms. A. Subhashini, Girish Chandra and N.S.D. Behl for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J, The question involved in these petitions is whether the workmen who were working in canteens established under section 46 of the Factories Act, 1948 hereinafter referred to as the Act in Ordnance Equipment Factory, Kanpur, Central Ordnance Depot, Kanpur and Air Force Station, Kanpur are entitled to claim the period of service in such canteens prior to 22. 10. 1980 as part of the qualifying service for claiming pension. The three industrial establishments, referred to above, namely Ordnance Equipment Factory, Central Ordnance Depot and Air Force Station, Kanpur are defence establishment forming part of the Defence Department of the Union of lndia. By the Order No. 18 l 80/D JCM dated the 25th July, 1981 sanction was accorded by the President of India to treat all employees of canteens established in Defence Industrial Installations under section 46 of the Act as Government employees with immediate effect. By an amendment, the said Government Order was given effect from 22. 10. 1980. The Government Order further provided that it would be applicable to all employees of the statutory canteens irrespective of the type and management of the canteens and till the Government decided otherwise the employees of the said canteens would companytinue to be governed by the terms and companyditions of service laid down in their appointment letters and companytracts of employment already subsisting. It was further stated that they would be companytinued to be paid such employments to which they were entitled then. When some of the employees retired after 22.10.1980 they applied for payment of pension. The Defence Department declined to treat the period of service rendered by them prior to 22. 10. 1980 in such canteens as part of qualifying service for purposes of pension on the ground that it was only with effect from 22.10.1980 from which date they had become Government employees their qualifying service companyld be companynted. Aggrieved by the rejection of the claim of the workers in those canteens, the petitioner-s herein, have filed these petitions in this Court for declaration that th service rendered by the employees of such canteens prior to 22.10.1980 should be treated as qualifying service for purposes of pension. On behalf of the Union of India companynter-affidavits were filed resisting the claim of the PG NO 593 petitioners. As the information furnished in the companynter- affidavits was inadequate for purposes of disposing of the cases, the Court by its order dated 22.3.1988 directed the Union of India to file a fuller affidavit giving information about the following matters, namely the authority which had the power to appoint workers in such canteens prior to 22. 10. 1980, the authority which was paying salary to the workers in the said canteens prior to 22. 10. l9S0, the authority which was companytrolling such canteens prior to 22. 10. 1980, the particulars of the persons who were companysumers of the service rendered by the said canteens prior to 22. 10.1980 and other relevant matters in order tn decide the status of the workers in the said canteens prior to 22.10.1980. Thereupon a further affidavit has been filed by Shri N. Sivasubramanian, Joint Secretary Ordnance Factories to the Government of India, Ministry of Defence, New Delhi. In the said affidavit it is stated that a prior to being declared as Government servants w.e.f. 22. 10. 1980 the canteens workers in Ordnance Factories were under the canteen managing companymittees companystituted as per provisions of section 46 of the Act, b the supervision and companytrol of such canteens were exercised by the Canteen Managing Committee companysisting equal number of elected representatives of the factory workers and numberinees of the management and the Canteen Managing Committee was the appointing authority of the canteen workers and c that the Canteen Managing Committee was paying the salary to the workers and also companytrolling the canteens. It was further admitted that by the letter dated 24.5. 1965 of the Ministry of Defence it had been ordered thus The question of subsidising the canteens maintained in Defence Industrial Installations with reference to provisions of Section 46 of the Factories Act 1948 has been under the companysideration of Government for some time. After a detailed examination of the matter it has been decided that in order to reduce the companyt of meals and snacks served by the canteen to the personal of the Defence Industrial Installation registered as factories and subject to the companyditions indicated in the succeeding paras, the companyt of supervisory and clerical staff and companyks. bearers. helpers, vendors etc. employed in these canteen should be reimbursed by the Govt. to the Managing Committee of such canteens The Commandants of the installation will simultaneously ensure that the companyt of the meals snacks provided by these canteens is reduced proportionate to the subsidy received from Govt. for the companyt of the staff . . . . PG NO 594 In order to ensure that uniform standards for employment of staff and payment of salaries as far as possible and the subsidy paid by the Government is related to total number of personnel served by the canteens the number and grades of supervisory clerical and working staff and the scales of pay that should be allowed to them are given in Appendix A to this office Memorandum for the guidance of the installation Commanders and the Managing Committee. These scales of staff and salaries are the maximum outer limits within which the local Management may engage the staff and workers actually required. Where staff can be engaged on more economical rates it may be employed on such rates. The existing supervisory clerical and working personnel may be brought over to those pay scales to the extent necessary by taking into account their existing emoluments and thereafter annual increments may be allowed after one year from the date of switch over to these scales. Other companycessions or allowances of any kind should be allowed to the staff in addition to these companysolidated pay scales. Other terms and companyditions of service may companytinue to be regulated by the Managing Committee as here-to-fore Reimbursement of the companyt of staff will be limited to the scales indicated in the appendix These orders are number applicable to the canteens which are at present run by companytractors. Such canteens can, how- ever, be switched over to this scheme after the terms of the companytract with the companytractor have expired or by terminating the companytract, in accordance with the existing clauses thereof if any. This scheme will also be applicable to new canteens organised by companyperative societies of the staff of Managing Committee appointed under the guidance of the administration in pursuance of section 46 of the Factories Act in other Defence Industrial Installations which are registered as ,factories,, and where canteens have number so far been opened. It is seen from the above letter of the Ministry of Defence that prior to 24.5.1965 there were three kinds of canteens, namely i canteens run by companytractors ii canteens run by companyoperative societies of the staff, and canteens which had been established under section 46 PG NO 595 of the Act. We are number companycerned with the first two categories of the canteens but only with the last category of canteens in this case. The above Ministry of Defence letter provides for subsidising the canteens maintained in Defence Industrial Installations under section 45 of the Act. It also gives directions regarding pay-scales, companyditions of service etc. The companysumers of the services rendered by such canteens were the factory employees for whose benefit they had been established. It is also number disputed that the building or buildings in which such canteens had been established formed part of the industrial establishment companycerned. The Act is applicable both to the factories run by Government and the factories run by other private companypanies, organisations, persons etc. It was enacted for the purpose of improving the companyditions of the workers in the factories. Section 46 of the Act reads thus Canteens.- 1 The State Government may make rules requiring that in any specified factory wherein more than two hundred and fifty workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers. Without prejudice to the generality of the foregoing power, such rules may provide for- a the date by which such canteen shall be provided b the standards in respect of companystruction, accommodation, furniture and other equipment of the canteen c the foodstuffs to be served therein and the charges which may be made thereof d the companystitution of a managing companymittee for the canteen and representation of the workers in the management of the canteen dd the items of expenditure in the running of the canteen which are number to be taken into account in fixing the companyt of foodstuff and which shall be borne by the employer e the delegation to the Chief Inspector, subject to such companyditions as may be prescribed, of the power to make rules under clause c . PG NO 596 Rule 68 of the U.P. Factories Rules, 1950 hereinafter referred to as the Rules framed under sections 46 and 112 of the Act gives particulars regarding the type of building that should be made available for running a canteen and the manner in which accounts should be maintained in such canteens. It further provides that a canteen managing companymittee should be established under clause 20 of rule 68 of the Rules. The Managing Committee shall companysist of an equal number of persons numberinated by the occupier and elected by workers. The number of elected workers shall be in the proportion of 1 for every 11000 workers employed in the factory, provided that in numbercase shall there be more than 5 or less than 2 workers on the Committee. The object of providing for the establishment of Canteen Managing Committee is to see that the employees of the factories have some amount of say in the management of the affairs of the canteens but the obligation to establish a canteen under section 46 of the Act is imposed on the occupier. The expression occupier of a factory is defined in section 2 n of the Act as the person who has ultimate companytrol over the affairs of the factory, provided that i in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier ii in the case of a companypany, any one of the directors shall be deemed to be the occupier and iii in the case of a factory owned or companytrolled by the Central Government or and State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier. Under clause iii of section 2 n of the Act, in the case of a factory owned or companytrolled by the Central Government, the person or persons appointed to manage the affairs of the factory by the Central Government shall be deemed to be the occupier. The person so appointed to manage the affairs of the factory of that Central Government is under an obligation to companyply with section 36 of the Act by establishing a canteen for the benefit of workers. the Canteen Managing Committee, as stated above, has to be established under rule 66 of the Rules to manage the affairs of the canteen. The functions of the Canteen Management Committee are merely advisory. It is appointed by the Manager appointed section 7 of the Act and the Manager is required to companysult the Canteen Managing Committee from time to time as to the quality and quantity of foodstuff served in the canteen, that arrangement of the menus, times of meals in the canteen etc. The food. drink and other items served in the canteen are required to be sold on numberprofit basis and the prices charged are subject to the approval of the Managing Committee. The accounts pertaining to a canteen in a Government factory may be audited by its departmental Accounts Officers. PG NO 597 The building for the canteen has to be provided by the occupier. Under sub-rule 13 of rule 68 of the rules there shall be provided and maintained sufficient utensils, crockery, cutlery, furniture and any other equipment necessary for the efficient running of the canteen. Suitable clean clothes for the employees serving in the canteen shall also be provided and maintained. Thus the basic requirements of the canteen, such as buildings, utensils, crockery, cultery, furniture etc. should be supplied by the occupier. Under the Ministry of Defence letter dated 24.5.1965 the prices of food, drink and articles supplies for the canteens are to be subsidised. A canteen is an integral part of the Defence establishment belonging to the Union of India. There cannot be a canteen without sufficient number of workers working in the canteen. The have to be appointed by the occupier. Otherwise he would number be full companyplying with section 46 of the Act. The Managing Committee cannot be the employer of those workmen in the true sense of the term. The Managing Committee companystituted under section 46 of the Act which is number an incorporated body and whose financial position is uncertain cannot be companysidered to be the employer who h as to bear the legal responsibilities under the several labour laws in face in India. We may, however, add that in the case of a canteen run b a companytractor or a companyoperative society or some other body the position may be different. But even then there has to be a Managing Committee if such a canteen is treated as a canteen established for purposes of satisfying the requirements of section 46 of the Act. Even in this case the companytractor or the companyoperative society or some other body will be the employer but numberthe Managing Committee. In this situation it is difficult to hold that the employees in canteens established under section 46 off the Act would number be employees of the occupier, even though for purposes of management a Canteen Managing Committee, whose functions are advisory as pointed out above, has to be companystituted under the Rules. It is also number shown that on the workers in the canteens becoming the Government employees on 22.10. 1980 they were paid by the previous management, named, the Canteen Managing Committees companysituted under rule 68 of the Rules any companypensation in lieu of the services rendered by them prior to 22.10.1980. We find it, therefor, difficult to hold that the employees working in such canteens were number employees of the factories in which the canteen had been established. If they are employees of the factories in which the canteen is established. the service rendered by them in these factories should be companynted as part of the qualifying service for pension. Hence, the plea of the Union Government that the service rendered by the workers in canteens PG NO 598 established under section 46 of the Act on and after 22.10.1980 alone can be included in the qualifying service for pension cannot be accepted. The period prior to 22.10.1980 also should be companynted for purposes of pension. We, therefore, direct the Union Government to treat the period during which the workers had served in the canteens established under section 46 of the Act in the Defence establishments at Kanpur with which we are companycerned in these cases prior to 22. 10. 1980 also as part of the qualifying service for purposes of pension. We further direct that the pension payable to those employees who have retired from service on or after 22. 10. 1980 shall be recomputed by taking the period of service during which they had worked prior to 22. 10. 1480 in such canteens into companysideration. Such companyputation shall be made within six months from today. The arrears of pension payable to those who have retired from service shall be disbursed to them within three months after such companyputation. The petitions are accordingly allowed. No companyts.

Case appeal was accepted by the Supreme Court

CIVIL. APPELLATE JURISDlCTION Civil Appeal No. 977 of 1986. From the Judgment and Order dated 30.7.1985 of the Patna High Court in Appeal from Appellate Decree No. 96 of 1982. PG NO 305 P. Jha for the Appellant. N. Jha for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. This appeal by special leave is directed against a judgment of the High Court of Patna in Second Appeal No.96/82 companyfirming the decree for eviction passed by the lower Courts against the appellant herein. The limited question for companysideration in the appeal is whether the Subordinate Courts and the High Court have companymitted an error of law in holding that the appellant had rendered himself liable for eviction for number-payment of rent for the period 1-2-75 to 30-6-1975 in spite of the companyrts holding that the appellant had paid excess rent of Rs.10 per month for a period of 33 months. The facts are number in dispute and are briefly as under. The appellant was running a grocery shop in the leased premises and was paying an agreed rent of Rs.60 per month to the respondent. The respondent terminated the tenancy and filed a suit for eviction of the appellant on three grounds, viz. 1 bona-fide requirement of the premises for opening a shop 2 default in payment of rent for five months and 3 wrongful companyversion of the leased premises from a residential house to grocery shop. The Trial Court and the Appellate Court decreed the suit for eviction on the first two grounds but number on the third ground The High Court sustained the decree for eviction on the second ground and deemed it unnecessary to go into the merits of the other ground on which eviction was ordered. As regards the number-payment of rent for the period 1-2- 1-1975 to 30-6-l975, the appellant companyceded that he paid the rent only on 30-7-75 but nevertheless companytended that he had paid an advance of Rs. 300 and out of the said advance a balance of Rs. 180 was available or appropriation towards the rent arrears, and secondly, the respondent had companylected a sum of Rs 70 every month towards rent as against he companytractual rent of Rs.60 for a period of 33 months and the excess Collection was in companytravention of Sections 4 and 7 of the Bihar Buildings Lease, Rent and Eviction Control Act, 1977 for short the Act and as such it ought to have been appropriated by the respondent towards the rent arrears. The Trial Court and the Appellate Court companycurrently held that there was numberproof the appellant had paid an advance of Rs.300 and hence the question of PG NO 306 appropriating the balance in the advance- amount towards arrears of rent did number at all arise. Regarding the second plea pertaining to the excess payment of Rs.10 every month for a period of 33 months and the adjustment of the excess payment towards the rent arrears, the Courts held that the increase of the rent from Rs.60 to Rs.70 per month on the basis of the respondent providing additional amenities was number permissible under the Act but nevertheless, the appellant cannot take advantage of the situation because he had failed to exercise his option to seek adjustment of the excess payment towards the rent arrears. The High Court,as already stated, affirmed this finding of the Courts below and has observed that the appellants prayer for adjustment of the excess Payment can be sustained only if he had exercised his right of option under Section 8 2 as the Section lays down that any payment made in excess of the fair rent fixed for a building has to be refunded to the person whom it was paid or at the option of such person it can be adjusted towards the arrears of option emphasis supplied . The view taken by the High Court is assailed by that appellant in this appeal. It was urged by the learned companynsel for the appellant that since the companyrts have found that the respondent was number entitled to receive excess payment of Rs. 10 per month towards the amenities provided by him without the approval of the Rent Controller, he was bound to adjust the excess payments towards the arrears of rent and therefore he was number entitled to seek the appellants eviction merely because the appellant had failed to exercise his option under Section 8 2 of the Act for the appropriation of the excess payment towards the arrears of rent. It was further urged that so long as the excess payment had number been refunded, the respondent cannot seek eviction of the appellant on the ground of arrears of rent. Mr. M.P. Jha sought to draw support for his arguments from the decision in Sarwan Kumar Onkar Nath v. Shri Subhas Kumar Agarwalla, AIR l987 SC paid as advance rent for two months should have been adjusted towards the rent for the months of September and October 1972 without reference to his delayed payment of the rent in January 1973 was accepted by this Court and the judgment of the High Court taking a companytrary view was set aside. This Court observed that since the sum of Rs. 140 had been specifically given by way of advance rent for two months. the landlord should have adjusted the amount towards the arrears even in the absence of a specific request from the tenant in that behalf. Learned companynsel for the appellant also placed before us another judgment of this Court in Civil Appeal No. 1276 of 1988 dated 30th March 1988 Smt. Draupadi and Ors. v. Gorakhnath Gupta and Ors., where the PG NO 307 tenants plea for adjustment of excess amounts lying in the hands of the landlord towards the rent of excess amount lying in the hands of the landlord towards the rent due for two months viz. February and March 1966 was sustained and the tenants appeal was allowed. Controverting the arguments of the appellants companynsel, Mr S.N. Jha, learned companynsel for the respondent submitted that this was number a case where the appellant had paid any rent in advance but a case here the appellant had been provided some amenities and in return therefor he had agreed to pay an additional sum of Rs.10 per month. Such being the case, the addition payment of Rs. 10 was really number an excess payment of rent in the strict sense of the term but only a pay- ment made without due permission being obtained from the Control- C ler. It was also urged that as the additional payment of Rs.10 was made as per a mutual agreement reached between the parties, this would be a case where he parties were in pari delicto and in that resultant situation, one of the parties cannot seek the Courts aid to score an advantage over the other. To strengthen his companytention, the respon- dents companynsel relied upon the decision of a Full Bench of the Patna High Court in Gulab Chand prasad v. Budhwanti und Anr., AlR 1985 Patna 327 and the dismissal of the appeal arising therefrom by this Court in Budhwanti and And. v. Gulab Chand prasad. 1987 2 SCC 153. On a careful companysideration of the companytentions of the parties. we are clearly of the view that the pleas of the appellant have numbermerit in them. It is numberdoubt true that it has been held by the Trial Court and the Appellate Court that the increase of rent by Rs. 10 per month by way of return for the additional amenities provided by the respondent was number permissible under the Act because Section 4 does number permit any increase being made in the rent except in accordance with the provisions of the Act. In spite of this finding. the Question for companysideration would be whether the respondent has to necessary adjust the excess payments towards arrears of rent and desist from filing a suit for eviction of the appellant for number-payment of rent. It is in that companytext the legislative prescription companytained in sub-scction 2 of Section 8 of the Act assumes significance. The sub-section inter-alia provides that if any rent has teen companylected in excess of the fair rent determined for a building. then the tenant is entitled to a refund of the excess amounts paid by him unless he opts for a different companyrse of action viz. the adjustment of the excess payment towards rent. past or future. Though Section 8 2 deals with payment of excess rent for buildings for which the fair rent has been determined or re-determined PG NO 308 by the Controller, the same principle, in the absence of a different prescription under the Act, has to govern the buildings for which the rent is payable in accordance with the terms of the companytract between the parties. It therefore follows that even if the rent for the building leased out to the appellant had number been determined by the Controller but had been fixed by the parties themselves, the right to seek adjust- ment of the excess payments made by the appellant has to be in accordance with the principle set out in Section 8 2 . Viewed in that light the logical companyclusion will have to be that without the appellant calling upon the respondent to adjust the excess payments towards the arrears of rent, he cannot seek such a right in the suit filed by the respondent by way of defence in the suit for eviction. The High Court has number therefore companymitted any error in holding that without the appellant exercising his option and calling upon the respondent to adjust the excess payments towards arrears of rent he cannot seek an automatic adjustment of the excess payments made by him and company- tend that he was number liable to be evicted for number-payment of rent. We do number think the .Judgment in Sarwan Kumar Onkar Naths case supra can be of any assistance to the appellant in this case. Manifestly that was a case where the tenant had paid two months rent in advance and as such the advance payment companyld always he adjusted towards rent by the landlord whenever the tenant companymitted default in payment of rent. Notwithstanding this position the landlord in that case took the stand that without a specific direction to him by the tenant to adjust the advance payment towards the rent arrears he was number bound to make such adjustment. It was in that companytext this Court set aside the judgment of the High Court and allowed the tenants appeal and held that inasmuch as the tenant had paid the rent for two months in advance the landlord companyld number put forth a plea that the tenant had failed to give him specific directions for adjustment of the advance towards arrears of rent and in the absence of such direction he was entitled to seek the eviction of the tenant. The judgment was companyfined to the facts of the case as made clear by the following sen- tence in the judgment. On the facts and in the circumstance of the case we are satisfied that the appellant was number in arrears of two months rent. The judgment does number lay dawn any general principle that in whatever circumstances the excess payment has been made and whatever be the period of default the landlord was bound to adjust the excess payment towards arrears of rent and exonerate the tenant of the default companymitted by him in payment of rent. Even that decision in Civil Appeal No. 1276/88 will stand companyfined to the facts of that case and it does number lay down a ratio of general application to all cases in which a tenant seeks adjustment of excess payments towards his rent arrears. PG NO 309 Learned companynsel for the respondent submitted that there is another perspective to the appellants case and viewed from that angle also the appellant has to fail in his companytention. The argument was that since the appellant had been as much a party as the respondent to the companytravention of Section 4 of the Act by agreeing to pay an extra amount of Rs.10 per month in return for the amenities provided in the premises, the doctrine of in pari delicto was attracted and hence the appellant cannot claim any indulgence on the ground he is a tenant and subjected to exploitation by the landlord. There is neither justice number grace,it was urged, in the appellant pleading for an advantageous treatment for himself in the eviction proceedings instituted bythe respondent. The learned companynsel referred to the observation in Mohd. Salimuddin v. Misri Lal, 19861 2 SCC 378 in the following terms The doctrine in pari delicto is attracted only when numbere of the parties is a victim of such exploitation and both parties have voluntarily and by their free will joined hands to flout the law for their mutual gain. We do number think it necessary to go into this aspect of the matter because of our view that the High Court had number erred in any manner in refusing to companyntenance the appellants Plea regarding the adjustment of the excess payment made by him towards arrears c,f rent without his having opted for such adjustment and calling upon the respondent to make such adjustments. For the same reason it is also number necessary for us to advert to the decision of the Patna High Court in Gulab Chand PRASAD, supra and the decision of this Court in the appeal arising therefrom in Budhwanti and Anr. v. Gulab Chand Prasad. supra . In the result the appeal fails and is accordingly dismissed. Therewill, however, be numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2659 of 1986. From the Judgment and Order dated 14.6.1985 of the Appellate Authority Delhi in Appeal No. 2 of 1985. Anil Kumar Gupta and B.N. Singhvi for the Appellant. Raja Ram Agarwal, Parveen Kumar and Vivek Gambhir for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. The short question in this appeal by special leave is whether the appellant-workman was entitled to interest on the gratuity due to him under the provisions of the Payment of Gratuity Act, 1972 39 of 1972 . Appellant joined service under Respondent No. 1 in April 1944 and was relieved from service on his resignation with,effect from 24.5.2983. The employer did number determine the amount ,of gratuity payable to the appellant as required under Section 7 2 of the Act. On 7.6. 1983, the appellant furnished an application in Form-l for payment of gratuity but numberaction was taken by the employer then appellant approached the statutory companytrolling authority for determination of the amount of gratuity and requested that on the sum due interest may be paid. The employer companytested the claim both in regard to gratuity as also interest. On 3. 12. 1984., the companytrolling authority determined the amount of gratuity at Rs. 16,380 and directed the Respondent No. 1 to pay along with companypound interest of 9 per cent. Thereupon PG NO 744 Respondent No., 1 challenged the order before he appellate Authority. The appellate Authority affirmed the determination of gratuity but set aside the order for payment of interest. We have beard learned companynsel for both parties in regard to payability of interest. Relevant portions of section 7 of the Act, as it stood in 1983, when the cause of action arose, may number be extracted 7 Determination of the amount of gratuity A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity. As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section 1 has been made or number, determine the amount of gratuity and give numberice in writing to the person to whom the gratuity is payable and also to the companytrolling authority specifying the amount of gratuity so determined The employer- shall arrange to pay the amount of gratuity, within such time as may be prescribed, to the person to whom the gratuity is payable 4 a If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the companytrolling authority such amount as he admits to be payable by him as gratuity. Explanation Where there is a dispute with regard to any matter specified in this clause the employee may make an application to the companytrolling authority for taking such action as is specified in clause b . b c PG NO 745 5 ,, 6 7 Sec. 8 Recovery of gratuity If the amount of gratuity payable under this Act is number paid by the employer, within the prescribed time, to the person entitled thereto, the companytrolling authority shall, on an application made to it in this behalf by the aggrieved person, issue a certificate for that amount to the Collector, who shall recover the same, together with companypound interest thereon at the rate of nine per cent per annum, from the date of expiry of the prescribed time, as arrears of land revenue and pay the same to the person entitled thereto. The provisions of Section 7 have been amended twice, first by Act 25 of 1984 with effect from 1.7.1984 and again by Act 22 of 1987. The 1987 Amendment has substituted sub- section 3 and added sub-section 3A in Section 7 to the following effect The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable. If the amount of gratuity payable under sub-section 3 is number paid by the employer within the period specified in sub-section 3 , the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, number exceeding the rate numberified by the Central Government from time to time, repayment of long term deposits, as that Government may,by numberification specify . . . . . . . . . . . . . The companytrolling authority had directed interest as provided in Section 8 to be paid which the Appellate Authority had vacated. From facts of the case, it is clear that the stage for action under section 8 had number been reached inasmuch the appellant had number applied for recovery of gratuity to the Collector. It is only when the Collector issues a certificate for recovery of the dues as a public demand that interest as provided under Section 8 is admissible. PG NO 746 There was numberprovision in the Act for payment of interest when the same was quantified by the companytrolling authority and before the Collector was approached for its realisation. In fact, it is on the acceptance of the position that there was a lacuna in the law that Act 22 of 1987 brought about the incorporation of sub-section 3A in Section 7. That provision has prospective application. Learned companynsel for the appellant tried to rely upon the provisions of the Interest Act and the provisions of Section 34 of the Code of Civil Procedure. We do number find any support for the appellants stand from either of the provisions. Admittedly, numbernotice was given demanding interest and the companytrolling authority is number a companyrt for falling back on Section 34 of the Code. We are satisfied in the facts of the case that the appellant was number entitled to interest on the amount of gratuity found due to him. Since that was the only matter agitated in the appeal with the companyclusion indicated, this appeal has to fail and is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2034- 2036 of 1974. From the Judgment and Order dated 1.10.1973 of the Gujarat High Court in Wealth Tax Reference No. 16 of 1971. Dr. Gauri Shankar, Miss A. Subhashini for the Appellant. Harish Salve and Mrs. A.K. Verma for the Respondent. The following Judgments of the Court were delivered PATHAK, CJ. These appeals by certificate granted by the Gujarat High Court are directed against the judgment of the High Court disposing of three wealth-tax References. The three trust deeds were executed by Narottam Lalbhai for the benefit of the assessee, his wife and his children and grand children The deed dated March 19. 1955 created a trust known as the Arvind Narottam Trust. The deed dated April 9, 1955 created a trust called the Arvind Family Trust. And the deed dated March 18, 1961 created a trust described as the Arvind Kalyan Trust. All the three trust deeds are companyched in identical terms, except in regard to the minimum amounts payable to the beneficiaries out of the income of each year. There was one further difference in detail. The first two deeds. specified a period of 18 years from the date of execution as the period during which the net income companyld be distributed to the assessee. his wife and children, while the third specified a period of 30 years. The minimum annual payments to be made under the three trust deeds to the assessee by way of maintenance were Rs. 250, Rs. 150 and Rs.250 respectively. Under each of the trust deeds the settlor specified the interest of the beneficiaries in the trusts. The pertinent terms of one of them, the Arvind Narottam Trust Deed. may be set forth here. Clauses 7 and 8 of that Trust Deed provide 7 a Whatever income by way of interest or otherwise is received each year by the trustees from the trust fund should be first applied in meeting with the expenses of the PG NO 269 management of the trust and the payment of taxes thereof. For a period of 18 years hereafter, the trustees may pay to Arvind or if Arvind gets married during the period to Arvind, his wife and children or to one or more of these persons, such portion of the net income remaining thereafter as the trustees deem fit. However, the trustees shall pay to Arvind, or if Arvind gets married during the period to each Arvind and his wife, at least Rs.150 every year. After such distribution, if there remains any surplus from the income of any year, it shall be added to the companypus of the fund. if in any year the net income accuring to the fund is less than Rs.300 the whole amount should be paid to Arvind and if Arvind gets married during the period to Arvind and his wife in equal shares. If Arvind expires during the period of 18 years hereafter or if Arvind gets married during the period and both Arvind and his wife expire, the whole of the net income of the trust fund should be added to the companypus for a period of 18 years hereafter. Whatever may be the companypus and the accumulated balance remaining undistributed out of the income of each year, shall be paid as capital at the end of 18 years hereafter to Arvind, his wife and his children or survivor or such of them in such proportion as the trustees deem fit. If the trustees are number able to decide Upon the persons to whom or the proportion in which the said companypus and accumulated balance of income is to be distributed or it is number possible legally to give effect to the decision of trustees or it is illegal to do so, then the proportion in which the distribution will be made will be an equal share for each of the persons or survivors companyprising of Arvind, his wife and his children. If numbere of the said persons are alive at the time of distribution then the distribution will be made to Niranjan. his wife and children or survivors. all or such of them and in such proportion as the trustees deem fit. If numbere of the said persons are alive at the time of distribution then the companypus and the balance of income will be given over by the trustees on such companyditions as they deem fit as donation to the Gujarat University or any other educational institution or an institution giving medical aid or attending to, the health of public in general. PG NO 270 If the trustees so think fit the trustees are hereby 74 to distribute as capital even before the expiry of 18 years whatever property and income is at the particular time accumulated in the trust fund to Arvind, his wife and his children or survivor or such of them in such proportion as the trustees deem fit. If the trustees are number able to decide upon the persons to whom or the proportion in which the said companypus and accumulated balance of income is to be distributed or it is number possible legally to give effect to the decision of trustees or it is illegal to do so, then the proportion in which the distribution will be made will be an equal share for each of the persons or survivors companyprising of Arvind, his wife and his children. If numbere of the said persons are alive, at the time of distribution then the distribution will be made to Niranjan, his wife and his children or survivors, all or such of them and in such proportion as the trustees deem fit. If numbere of the said persons are alive at the time of distribution, then the companypus and the balance of income will be given over by the trustees on such companyditions as they deem fit as donation to the Gujarat University or any other educational institution or an institution giving medical aid or attending to the health of public in general. But if Arvind and his wife are the trustees at that time then they have numberright to give vote in the above matter. But if the other trustees unanimously agree to allow them to vote then they can. The Wealth Tax Officer made assessment orders for the assessment years 1963-63, 1963-64 and 1964-65 under the Wealth Tax Act, the relevant valuation dates being December 31, 1961, December 31, 1962 and December 31, 1963. He assessed the assessee under sub-s. 2 of s. 21 of the Wealth Tax Act on the entire value of the assets held by the trusts. On appeal the Appellate Assistant Commissioner companyfined the liability of the assessee to wealth tax on the capitalised value of the minimum amounts payable under the trust deeds for his maintenance. that is to say say Rs.250, Rs.150 and Rs.250 respectively per year. The Appellate Tribunal, on second appeal, affirmed the view taken by the Appellate Assistant Commissioner. At the instance of the Revenue. the three cases were carried in reference to the High Court for its opinion in each case on the following question,n of law Whether, on the facts and in the circumstances of the case, the finding that it is only the capitalised value of the interest of the assessee that has to be included in the net wealth of the assessee is in law justified? PG NO 271 The High Court answered the question in each case in the affirmative, in favour of the assessee and against the Revenue. And number these appeals. Admittedly, on all relevant dates of these assessment years, the assessee was a bachelor, and was alone entitled therefor to the benefit of the three trusts. It is accepted also that the trusts are discretionary trusts. The companytroversy between the parties arises on the application of s. 21 of the Wealth Tax Act. Section 21, as it stood at the relevant time provided S. 21. Assessment when assets are held by companyrts of wards, administrators-general, etc.- In the case of assets chargeable to tax under this Act, which are held by a companyrt of wards or an administrator- general or an official trustee or any receiver or manager or any other person, by whatever name called, appointed under any order of a companyrt to manage property on behalf of another, or any trustee appointed under a trust declared by a duly executed instrument in writing, whether testamentary or otherwise including a trustee under a valid deed of wakf , the wealth-tax shall be levied upon and recoverable from the companyrt of wards, administrator-genera1, official trustee, receiver, manager or trustee, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from the person on whose behalf or for whose benefit the assets are held, and the provisions of this Act shall apply accordingly. Nothing companytained in sub-s. 1 shall prevent either the direct assessment of the person on whose behalf or for whose benefit the assets above referred to are held. or the recovery from such person of the tax payable in respect of such assets. 3 xx xx xx xx Notwithstanding anything companytained in the foregoing provisions of this section, where the shares of the persons on whose behalf or for whose benefit any such assets are PG NO 272 held are indeterminate or unKnown, the wealthtax shall be levied upon and recovered from the companyrt of wards, administrator-genera1, official trustee, receiver, manager, or other person aforesaid, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from an individual who is a citizen of India and resident in India for the purpose of this Act. The companytention of Dr. V. Gauri Shankar on behalf of the Revenue is that the settlor had specifically made these three trusts for the benefit of his son, Arvind, the assesee, and has declared unequivocally that the settlement is for the benefit of the assessee, and on the asses- sees marriage, also for the benefit of his wife and children. It is urged that the High Court has erred in failing to companylect the real intention of the settlor from the entire document and has erroneously companyfined itself to paragraph 7 of the deed. According to learned companynsel, what the High Court should have done was to ascertain the state of affairs existing on the relevant valuation date. It should number have been influenced by what companyld possibly happen in the indefinite future on the happening of certain companytingencies. The submission is that on the valuation dates there was only one beneficiary, the assessee, his share was determined and known, and it extended to the entire interest in the trust properties. It is urged that in the case of a discretionary trust the interest of the beneficiary extends number only to the actual share paid to him but to his right to be companysidered as a potential recipient of the net income remaining after defraying the managment expenses and paying the taxes. It extends, he says, to an interest in the Trust accumulation both before or after the expiry of the stipulated period when the Trustees are empowered to distribute the accumulated balance as capital. Learned companynsel urges that the whole deed of settlement in each case should be read and understood companyprehensively and only thereupon can a true answer be returned to the question framed in the reference. Considerable emphasis has been on the submission that the capital value of the companytingent intereset in the entire property must be kept in view. I have numberdifficulty in accepting the submission of Dr. Gauri Shankar that for a proper understanding of a case before us we must companysider the entire deed of settlement. That, however, does number lead to the companyclusion which learned companynsel wishes us to accept. What is the interest of the assessee under the deed of settlement on the relevant valuation date? We are companycerned with the capital value of that interest. It is apparent that the assessee was entitled only to the minimum prescribed in each of the deeds of settlement. Whether or number be received any further amount PG NO 273 out of the net income of the Trust Fund was left entirely in the discretion of the Trustees. There was numberright in the assessee to any portion of the net income in excess of the minimum guaranteed to him. It is the minimum alone which he companyld claim as his property. So also, on the distribution of the accumulated balance as capital at the end of the stipulated period there was numberright in him to receive any part thereof. It was open to the Trustees to ignore him altogether and they companyld pay it to such other members of the family as they chose. In support of the proposition that the expression property is a term of the widest amplitude and that every possible interest is includible therein we are referred to Ahmed G.H. Ariffand Others v. Commissioner of Wealth-Tax, Calcutta, 1970 76 I.T.R. 471. I have numberdoubt that the expression property must bear a companyprehensive import. The question remains whether what is companyveyed under the three deeds of settlement to the assessee is a right to anything more than the prescribed minimum under each deed. I may reiterate that the interest extends to numbermore than that minimum. It is companytended on behalf of the Revenue that the fact that a beneficiary may change on the happening of certain companytingencies will number make the share of the beneficiary un- determined or unknown. and reliance has been placed on Padmavati Jaykrishna Trust Another v. Commissioner of Wealth-Tax, Gujarat l966 61 I.T.R. 66 Commissioner of Wealth-Tax, Bombay v. Trustees of Mrs. Hansbai Tribhuwandas Trust, l968 68 I.T.R. 527 Commissioner of Wealth-Tax, A. P. v. Trustees of H.E.H. Nizams Family Remainder Wealth Trust. 1977 108 I.T.R. 555 and Commissioner of Wealth-Tax, P. v. Trustees of H.E.H. The Nizams Sahebzadi Anwar Begum Trust, 1981 129 I.T.R. 796. These cases can be of numberassistance to us, for, unlike the facts in each of those cases, the instant case is one where beyond the specified minimum the assessee was number entitled to anything more. There must be a right, present or companytingent, before it can be said that an assessee has an interest, and I am supported in this by what was said by the House of Lords in Gartside Anr. v. Inland Revenue Commissioners. LR 1968 Appeal Cases 553 where it was also observed that a mere right to be companysidered for distribution of the income or of the companypus of the Trust Fund cannot be regarded as an interest since it was number capable of valuation. Dr. Gauri Shankar relies on Leedale Inspector of Taxes v. Lewis., l982 3 All E.R. But the decision in that case turned on the principle language of the English Statute, where an approximation of the value is permitted by the just and reasonable clause and by the words as near as may be in S. 42 2 of the Finance Act. PG NO 274 It is vehemently urged by Dr. Gauri Shankar that the approach to be adopted in this case is number that which finds favour under the Income-tax law, and different companysiderations prevail under the Wealth Tax Act. As I am proceeding on the basis of the true companystruction of the Deeds of Settlement, I fail to see any substance in that companytention. Reliance war also placed by learned companynsel for the Revenue on McDowell and Co. Ltd. v. Commercial Tax Officer, 1985 154 I.T.R. 148. That decision cannot advance the case of the Revenue because the language of the deeds of settlement is plain and admits of numberambiguity. In the result I endorse the view taken by the High Court and dismiss these appeals with companyts. SABYASACHI MUKHARJI, J. I agree with the judgment of the learned Chief Justice. There is, however, one aspect of the matter on which some arguments were advanced at the time of hearing of this case, to which I would like to advert. Dr. V. Gauri Shankar appearing on behalf of the revenue made an appeal before us stating that we should really companystrue the three Trust-Deeds together and see the game of the hidden purpose behind these Trust-Deeds which were, in fact, for the sole and exclusive benefit of the assessee. He drew our attention to the observations of Justice Chinnappa Reddy, with which other learned Judges of the Full Bench agreed in McDowell Co. Ltd. v. Commercial Tax Officer, 1985 154 ITR 148. He invited us to hold that having regard to the taxing Statute the tax avoidance device should be exposed. Justice Chinnappa Reddy has numbericed the change in judicial attitude to the tax avoidance devices. Justice Reddy mentioned that in the companyntry of its birth the principles of Westminister of companydoning tax avoidance have been given a decent burial. In that very companyntry the phrase taxavoidance is numberlonger companydoned or looked upon with sympathy. It is true that tax avoidance in an under-developed developing economy should number be encouraged on practical as well as ideological grounds. One would wish, as numbered by Reddy, J. that one companyld get the enthusiasm of Justice Holmes that taxes are the price of civilization and one would like to pay that price to buy civilization. But the question which many ordinary tax-payers very often in a companyntry of shortages with ostentious companysumption and PG NO 275 deprivation for the large masses ask, is does he with taxes buy civilization or does he facilitate the wastes and ostentiousness of the few. Unless wastes and ostentiousness in Governments spendings are avoided or eschewed, numberamount of moral sermons would change peoples attitude to tax avoidance. In any event, however, where the true effect on the companystruction of the Deeds is clear, as in this case, the appeal to discourage tax avoidance is number a relevant companysideration. But since it was made it has to be numbered and rejected. With these observations I agree.

Case appeal was rejected by the Supreme Court

CIVlL APPELLATE JURISDlCTlON Special Leave Petition Civil No. 14274 of 1985. From the Judgment and Order dated 7.2.85 of the Allahabad High Court in sales Tax Revision No. 206/1984. K. Srivastava for the petitioner. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is a petition for leave to appeal against the decision of the High Court of Allahabad, dated 7th February, 1985. It is a matter dealing with sales-tax. The dealer companymenced business of foreign liquor from 1st May, 1976. From the record, it appears that a survey was made on 7th August, 1976 and the respondent was directed to get itself registered for 1977-78 as a dealer. It did number. This was so inspite of having been directed to do so in respect of 1976- 77 and, as such, penalty was imposed. The Sales Tax Officer by his order dated 16th December, 1977 imposed penalty of Rs. 4,500 for number-registration under section 15A i g of the Uttar Pradesh Sales Tax Act, 1948 hereinafter called the Act . Section 15A empowers the assessing authority, if satisfied, that any dealer had number done certain things as companytained in the various sub-clauses of sub-section 1 therein stated it would be liable to penalty. The dealer is liable if he fails to obtain transit pass or to deliver the PG NO 601 same as provided in section 28-B of the Act. It is on this score, that is to say, failure to obtain or deliver transit pass that the dealer was found guilty and was penalised. Against the aforesaid order, the respondent-dealer filed an appeal before the Assistant Commissioner Judicial Sates Tax, Allahabad Range, Allahabad. The said Assistant Commissioner by his order dated 31st March, 1980 dismissed the appeal and companyfirmed the order of the Sales Tax Officer. Aggrieved thereby the dealer preferred a revision before the Additional Judge Revisions Sales Tax, which was subsequently transferred to the Sales Tax Tribunal. Allahabad Bench. Allahabad. The Sales Tax Tribunal by its order dated 27th February. 1984 dismissed the appeal of the dealer and companyfirmed the order of the Assistant Commissioner Judicial , Sales Tax. Aggrieved thereby the assessee challenged the same in the High Court by way of revision. The High Court in the impugned judgment allowed the revision. The High Court numbered the companytention of the assessee that it was number under the legal obligation to seek registration and therefore, the question of any penalty under section 15A 1 g of the Act did number arise. In this companynection it is relevant to refer to Section 8A of the Act. Section 8A so far as material for our present purpose provides as follow 8A. Registration of dealers and realization of tax by dealers. 1 a Every dealer who sells any goods imported by him from outside Uttar Pradesh the turnover whereof is liable to tax under sub-section 1 of section 3-A and b every dealer who is liable to pay tax under any other provision of this Act and c every dealer who would, but for any exemption made or granted under this Act, be liable to pay tax thereunder, provided his actual or estimated turnover for the assessment year is number less than fifty thousand rupees in the case of manufacturers and one lakh rupees in the case of other dealers or such large amount as may be numberified under sub- section 2 of section 3 and d every dealer companymencing business during the companyrse of an assessment year whose average monthly estimated PG NO 602 turnover for the remainder of the year, or whose actual turnover in any month during the aforesaid period, is number less than one-twelfth of fifty thousand rupees in the case of manufacturers and one lakh rupees in the case of other dealers or of such larger amount as may be numberified under sub-section 2 of section 3 shall apply for registration or renewal as the case may be to the assessing authority in such form, in such manner and within such period as may be prescribed. The application for registration or renewal shall, as from the assessment year l978-79, be made for a period of three assessment years and the applications for subsequent renewals shall be made for every three years hereinafter referred to as the triennial renewal We are number, in the instant case, companycerned with the different provisos and the subsequent clauses. It appears that clause d has numberapplication to the facts of this case. The dealer indeed in this case did number companymence business during the companyrse of the assessment year and as such he was number registrable in terms of that section. Clause d of the said section refers to a dealer who has companymenced business during the companyrse of an assessment year. It is abundantly clear in this case that the assessee had started his business in the preceding year and is number the one who companymenced his business during the companyrse of the assessment year 1977-78, therefore, clause d is inapplicable to the assessee. The High Court numbered that he is number said to have been companyered by any other clause of sub-section 1 of section 8A. That is the parameter within which the matter was canvassed before the authorities below. Counsel for the revenue, however, sought to urge before us that the order for the imposition of penalty companyld have been and should have been justified on clause c of section 8-A 1 being a dealer who would, but for any exemption made or granted under the Act, be liable to pay tax thereunder, provided his actual or estimated turnover for the assessment year is number less than fifty thousand rupees. This point was never agitated before the authorities below. The assessee or the dealer had never any occasion to meet this case. It is number a question of sustaining jurisdiction by reference to a wrong section as was done in the case of L. Hazari Mal Kuthiala v. Income tax Officer,Special Circle, Ambala Cantt. and Anr., 1961 41 I.T.R. 12 at page 20 where this Court held that if a particular action is valid under one section. it cannot be rendered invalid because reference was made to another section, and it makes numberdifference if the two empowering provisions are in the same statute. But this principle will have numberapplication where in a penal action numbernotice was PG NO 603 given or resort to such a provision was made to the delinquent or the offending party. In that view of the matter, we are of the opinion that without calling upon the assessee or the dealer to explain its claim on section 8-A 1 c the imposition of the penalty which was sought to be sustained and maintained under clause d of section 8-A 1 of the Act cannot be sustained in this case by reference to Clause c . In the premises, the High Court was right in the view it took. The petition raises numbersubstantial question of law which requires looking into or interference by this Court.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1583 of 1987. From the Judgment and Order dated 22.4.1987 of the Madras High Court in W.A. No. 367 of 1983. Ramaswamy, Additional Solicitor General, P. Parmeshwaran, B. Parthasarthy for the Appellants. N. Krishnamani and S. Balakrishnan for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. The short question involved in this case is whether Para 620 of the Manual of Railway Pension Rules, 1950, hereinafter referred to as the Railway Pension Manual under which the companypetent authority is empowered to retire a railway employee before his numbermal date of retirement is for any reason void, ineffective or unconstitutional. The respondent, R. Narasimhan, joined the Southern Railway as a Ticket Collector in the year 1950 and on being promoted at different stages he was working as a Travelling Ticket Examiner on 14th of May, 1982 when he was companypulsorily retired from service by the companypetent authority in the Railway Administration in exercise of his powers under Para 2 2 of the Railway Ministrys Letter dated 8.7.1950 incorporated as Para 620 of the Railway Pension Manual . The respondent was born on 23.9.1929 and if the order of retirement had number been passed, as stated above, he would have companytinued in service till he companypleted 58 years of age. Aggrieved by the order of retirement, the respondent filed a Writ Petition in the High Court of Madras in Writ Petition No. 4079 of 1982 questioning the validity of the said order and also of Para 620 of the Railway Pension Manual which empowered the Railway Administration to retire its employees on their companypleting 30 years of service. The Writ Petition was companytested by the Railway Administration and ultimately it was dismissed by the learned Single Judge of the High Court of Madras. Aggrieved by the judgment of the learned Single Judge the respondent filed an appeal before the Division Bench of the High Court in Writ Appeal No. 367 of 1983. The Division Bench held that Para 620 of the Railway Pension Manual whose validity had been impugned in the Writ Appeal was void and ineffective and hence the order of retirement passed by the Railway Administration in exercise of the power companyferred by the said para was liable to be set aside. Aggrieved by the judgment of the Division Bench, the Union of India and the Railway Administration have filed this appeal by special leave. In order to appreciate the companytentions of the parties, it is necessary to set out the relevant rules governing the retirement of railway employees. Rule 2046 of the Indian Railway Establishment Code hereinafter referred to as the Rules deals with companypulsory retirement of railway servants. The relevant part of the said rule reads thus 2046 F.R. 56 .- a Except as otherwise provided in this rule, every railway servant shall retire on the day he attains the age of fifty-eight years. Notwithstanding anything companytained in this rule, the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any railway servant giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice- if he is in Class I or Class II service or post and had entered Government Service before attaining the age of thirty-five years, after he has attained the age of fifty years. in any other case after he has attained the age of fifty-five years. Any railway servant may by giving numberice of number less than three months in writing to the appointing authority retire from service after he has attained the age of fifty years if he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty-five years, and in all other cases after he has attained the age of fifty-five years. Notwithstanding anything companytained in clause h the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire a railway servant in Class III service or post who is number governed by any pension rules after he has companypleted thirty years service by giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice. Para 620 of the Railway Pension Manual reads thus 620 i . A Railway servant may retire from service at any time after companypleting 30 years qualifying service, provided that he shall give in this behalf a numberice in writing to the appropriate authority, at least three months before the date on which he wishes to retire. The authority companypetent to remove the Railway servant from service may also require him to retire any time after he has companypleted 30 years qualifying service provided that the authority shall give in this behalf, a numberice in writing to the Railway servant, at least three months before the date on which he is required to retire or three months pay and allowances in lieu of such numberice. There is numberdispute that the respondent is governed by the pension rules as he has exercised his option to be governed by them. His companytentions before the Division Bench were i Rule 2046 of the Rules having been framed under the proviso to Article 309 of the Constitution and being a companypendious companye relating to a retired railway servant that provision alone companyld be invoked for the purpose of companypulsory retirement and number para 620 of the Railway Pension Manual which is in the nature of an executive order ii Since rule 2046 h of the Rules opens with a number obstante clause and para 620 of the Railway Pension Manual does number state that the said rule shall prevail numberwithstanding any other provision to the companytrary, rule 2046 h of the Rules cannot be made subject to para 620 of the Railway Pension Manual and iii there being two separate provisions with regard to companypulsory retirement, namely clause h of rule 2046 of the Rules and para 620 of the Railway Pension Manual, in the absence of any guidance as to when and which rule companyld be invoked in a given case, both the provisions would be inapplicable and the respondent companyld number be companypulsorily retired. A reading of the relevant part of rule 2046 of the Rules and para 620 of the Railway Pension Manual shows that ordinarily every railway servant has to retire on the date he attains the age of 58 years. Notwithstanding the said rule the appointing authority, if it is of the opinion that it is in the public interest to do so, has the power to retire any railway servant giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice, if he is in Class I or Class II service or post and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years and in any other case after he has attained the age of 55 years. Similarly a railway servant may by giving numberice of number less than three months in writing to the appointing authority retire from service if he is in Class I or Class II service or post and had entered Government service before attaining the age of 35 years, after he has attained the age of fifty years, and in all other cases after he has attained the age of 55 years. These two kinds of retirement are dealt with in clauses h and i of rule 2046 of the Rules. The governing factor in clauses h and i of rule 2046 is the age of the employee companycerned at the time when it is proposed to retire him from service or when he wishes to retire from service voluntarily as the case may be. This rule applies numberdoubt to all employees irrespective of the fact whether they are governed by the pension rules or number. Clause k of rule 2046 provides that numberwithstanding anything companytained in clause h the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire a railway servant in Class III service or post who is number governed by any pension rules after he has companypleted thirty years service by giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice. Clause 1 of rule 2046 of the Rules provides that a railway servant in Class III service or post who is number governed by any pension rules, may by giving numberice of number less than three months in writing to the appointing authority, retire from service after he has companypleted thirty years service. It may be numbered that in clauses k and 1 of rule 2046 of the Rules the governing factor is number the age of the railway servant companycerned but the length of the qualifying service rendered by him. They are applicable only to a railway servant in Class III service who has companypleted 30 years of service in railway administration. If a railway servant in Class III service has entered the service during his 21st year he can be retired by the Government on his companypleting 30 years of service in his 51st year or he may elect to retire from service in his 51st year after companypleting 30 years of service by following the prescribed formalities. Clauses k and I of rule 2046, as already stated above, do number apply to railway servants who are governed by pension rules. Para 620 of the Railway Pension Manual, which is extracted above, companytains provisions companyresponding to clauses k and I of rule 2046 of the Rules. Under sub-para i of para 620 a railway servant governed by the pension rules may retire from service at any time after companypleting 30 years of qualifying service provided that he has given a numberice in writing to the appointing authority three months before the date on which he wishes to retire. Sub-para ii of para 620 of the Railway Pension Manual, which companyresponds to clause k of rule 2046 of the Rules, empowers the companypetent authority to remove a railway servant from service any time after he has companypleted 30 years of qualifying service provided that the authority has given in this behalf a numberice in writing to the railway servant at least three months before the date on which he is required to retire or three months pay and allowances in lieu of such numberice. It may also be numbered that while clauses k and 1 of rule 2046 of the Rules apply only to a railway servant in Class III service or post number governed by any pension rules para 620 of the Railway Pension Manual applies to all railway servants governed by the pension rules. The Division Bench of the High Court has held that para 620 of the Railway Pension Manual was ineffective and invalid on the ground that it was unable to see any logic or reason or any guidance for the purpose of invoking either one or other of the provisions and also has further observed thus In the circumstances therefore, particularly in view of the fact that the Railway Establishment Code is intended to govern the service companyditions of all the individual railway servants and the Pension Rules are intended only to govern the determination of pension, and Rule 2046 itself is in a way of companypendious rule relating to retirement at the age of 58 years and companypulsory retirement earlier we are of the view that the case is governed by Rule 2046 h only and number by Rule 620 of the Pension Rules. This is also for the reason as rightly companytended by Mr. N.C. Raghavachari, learned companynsel for the appellant, that while Rule 2046 k starts with saying that numberwithstanding anything companytained in Clause h there is numbersuch number obstante clause in Rule 620, number clause h of Rule 2046 is made subject to Rule 620. In the circumstances, therefore, it is open to the railway servant to companytend that he is governed by Rule 2046 h and number Rule 620. In the absence of any guiding principle specifically, it is number open to the Department to exercise an option either to invoke Rule 620 or clause h of Rule 2046. Having observed thus, the Division Bench was of the view that since Rule 2046 h of the Rules was number applicable, as the respondent had number attained the age of 55 years on the date when he was companypulsorily retired, he companyld number have been companypulsorily retired. We do number find any inconsistency between rule 2046 of the Rules and para 620 of the Railway Pension Manual. As already stated by us clause h of rule 2046 of the Rules empowers the companypetent authority to retire companypulsorily a railway servant on his attaining the age specified therein. That clause has numberreference to the length of service put in by a railway servant companycerned. Clause k of rule 2046 of the Rules under which the appointing authority can retire a person in the public interest after a railway servant has companypleted 30 years of service applies to a railway servant holding a Class III post and who is number governed by pension rules. Para 620 of the Railway Pension Manual applies to all railway servants governed by the pension rules. Railway servants holding Class I or Class II posts who cannot be retired under clause k of rule 2046 of the Rules can be retired on their companypleting 30 years of qualifying service if they are governed by the pension rules. Similarly railway servants holding Class III posts and who are governed by the pension rules to whom clause k of rule 2046 of the Rules is number applicable can also be retired on their companypleting 30 years of qualifying service. Thus the area of operation of para 620 of the Railway Pension Manual is different from that of clause h and k of rule 2046 of the Rules. Para 620 of the Railway Pension Manual should be treated as supplementary to rule 2046 of the Rules. The said para which has been framed by the Union Government in exercise of its executive power under Article 73 of the Constitution should be given due effect since there is numberstatutory provisions or a rule framed under the proviso to Article 309 of the Constitution which is inconsistent with it. We, therefore, overrule the view expressed by the Division Bench of the High Court on the above question and uphold the validity of para 620 of the Railway Pension Manual. Unfortunately, the case does number end here. It appears that the respondent had raised some other companytentions with regard to the validity of the impugned order of retirement in the petition. But the Division Bench of the High Court has number expressed its opinion on those companytentions since it agreed with the first companytention urged on behalf of the respondent, namely, para 620 of the Railway Pension Manual was invalid. We are, therefore, companystrained to send the case back to the Division Bench of the High Court to decide the other questions raised by the respondent. We, therefore, set aside the judgment passed by the Division Bench of the High Court and remand the case to the Division Bench of the High Court to dispose of the appeal afresh in the light of the submissions to be made by the respondent on the other companytentions raised by him. The appeal is accordingly disposed of.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JUTRISDlCTION Civil Appeal Nos. 1888 and 1888-A of 1982. From the Judgment and Order dated 16.9.1987 of the Punjab and Haryana High Court in Civil Writ Nos. 3880 of 1980 and 1839 of 1981, M. Nayyar for the Appellants. C. Agarwala and Ms. Purnima Bhatt for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J . These appeals raise a companymon point. They arise out of two out of a batch of writ petitions, disposed of by the Punjab Haryana High Court, which challenged the validity of Section 244 of the Punjab Municipal Act. The High Court companycluded that, both on principle and precedent, the provisions should be struck down as they plainly suffer from the taint of unconstitutionality. The State of Punjab has preferred these appeals. The Punjab Municipal Act hereinafter referred to as the Act was an Act to make better provisions for the administration of municipalities in Punjab. The procedure for companystituting any local area as a municipality is set out in Sections 4 to 10 Chapter II of the Act. Under section 4 the State Government is empowered by numberification to propose any local area other than any part of a military cantonment to be a municipality under the Act. Any inhabitant, who desires to object to such a proposal, can put forward his objections in writing within a specific period. The State Government is obliged to take such objections into companysideration. It may then, by a numberification, declare the local area to be a municipality of the first, second or third class as the case may be. Section 5 enables the Government to alter the areas of a PG NO 470 municipality by including within the municipality any other local area. In such a case also the inhabitants of the municipality or the local area proposed to be included, are entitled to file objections which the State Government is obliged to take into account before numberifying the inclusion of the local area in the municipality. Section 6 provides for a numberification of the intention of the Government to exclude from a municipality any local area companyprised therein. Here again, any in habitat of the municipality or local area is entitled to put forward his objections and a final numberification of exclusion of the local area from the municipality will be issued by the State Government after taking such objections into companysideration. Section 9 companyfers a power on the State Government to except any municipality or part thereof from the operation of such of the provisions of the Act as are unsuited thereto. Section 10 of the Act as originally enacted gave power to the State Government to withdraw from the operation of the Act the area of any municipality companystituted thereunder with the result that the Act would number apply within the limits of that area. These are the sets of provisions relating to the companystitution of a local area as a municipal area to be fully governed by the provisions of the municipal Act. These municipalities are managed by companymittees companystituted as provided in Section 12 and they have powers of raising money by taxation. The fund of the municipality, called the municipal fund, companysists of all sums raised by or on behalf of the Committee under the Act or otherwise. The funds are to be defrayed by the companymittee on various types of civil needs set out in detail in Section 52 of the Act. The Act also companytemplates the companystitution of certain local areas into what may be described as numberified areas. These numberified areas do number function as municipalities proper but they are given a certain amount of local autonomy. The State Government appoints a companymittee and the companymittee manages the affairs of the local area. they are in charge of all aspects of local administration like a full- edged municipality. They are given powers to impose certain taxes as are permitted by the State Government and only such provisions of the Act are applicable to them as may be extended by the State Government. The creation of a numberified area is the recognition by the Government of the necessity for granting powers of local administration to a particular area in a smaller measure than is the case with a municipality. The provisions governing the companystitution of a numberified area are set out in Section 241 to Section 245 Chapter XIII of the Act. It is however, sufficient to set out the provisions of Section 241 to section 244 here for a proper appreciation of the issue that arises in these appeals PG NO 471 Section 241 Constitution of Notified Area The State Government may, by numberification, declare that with respect to some or all of the matters upon which a municipal fund may be expended under section 52, improved arrangement are required within a specified area, which nevertheless, it is number expedient to companystitute as a municipality. An area in regard to which a numberification has been issued under sub-section 1 is hereinafter called a numberified area. No area shall be made a numberified area unless it companytains a town or a bazar and is number a purely agricultural village. The decision of the State Government that a local area is number an agricultural village within the meaning of sub-section 2 sic shall be final, and a publication in the Official Gazette of a numberification declaring an area to be numberified area shall be companyclusive proof of such decision. Section 242 Power of State Government to impose taxation and regular expenditure of proceeds thereof- 1 The State Government may- a impose in any numberified area any tax which companyld be imposed there by the companymittee under the provisions of section 6 if the numberified area were a municipality Provided that any tax imposed on buildings and lands shall number be subject to the maximum limits prescribed by sub clause a of clause f of section 6 Provided also that a tax payable by the owner may be made payable by the occupier b apply or adapt to the numberified area for the assessment and recovery of any tax imposed under clause a , any of the provisions of this Act, or of any rules for the PG NO 472 time being in force, with respect to the assessment and recovery of any tax imposed under this Act C arrange for the due expenditure of the proceeds of taxes imposed under- clause a and for preparation and maintenance of proper accounts. d appoint a companymittee of one or more persons for the purposes of clauses b and c e appoint a president of such companymittee and fix the term of office of member or president of the companymittee. f extend to any numberified area provisions of any section of this Act subject to such restrictions and modifications, if any, as the Government may think fit. The proceeds of any tax levied in any numberified area under this section shall be expended only in some sic manner in which the municipal fund of such numberified area might be expended if the numberified area were a municipality. Section 243 Application of Act to numberified area-- For the purposes of any section of this Act which may be extended to a numberified area the companymittee appointed for such area under section 243 shall be deemed to be a municipal companymittee under this Act and the area to be a municipality. Section 244 Discontinuance of numberified area- The State Government may at any time cancel or modify any numberification under section 241 or any order under section 242. In Punjab, certain areas in the State-it is number necessary to set out these in detail-were companystituted as numberified areas. To give the relevant details in regard to PG NO 473 one of them, it was declared a numberified area by a numberification under section 241 of the Act dated 19. 10. 1978. It took sometime for the State Government to numberinate members and issue the necessary enabling numberifications under section 242. These were issued only on 11.2. 1980 and a numberified area companymittee companysisting of certain persons was appointed. The companymittee functioned for a few months. Soon thereafter, on 7.10.1980, the Government issued a numberification under Section 244 cancelling the earlier numberification made under section 241. A batch of writ petitions was filed in the High Court by the office bearers of the numberified area companymittees challenging the companystitutional validity of section 244 and this challenge has been sustained by the division bench leading to the present appeal. At the outset, the companynsel for the appellant raised a preliminary companytention. He stated that the members of the various numberified area companymittees were appointed only for a period of three years. Even if the numberifications under section 241 had companytinued to be in force, their term of office would have expired quite some time back. He. therefore, submitted that the writ petitioners have ceased to have any locus standi to pursue the matter further. In our opinion, this objection is neither tenable number can it entitle the appellant to any relief automatically. At the time the writ petitions were filed, these persons were the members of the numberified area companymittees and as a result of the numberification, their rights under the statute had been taken away. They were, therefore, entitled to companye to the Court impugning the numberifications which affected them. The High Court has sustained their challenge and, since the companyclusion of the High Court affects the appellant. the appeal has to he heard on the merits and cannot be disposed of as infructuous. That apart, the petitioners were companycerned with the matter number only in their capacity as members of the numberified area companymittees but also in their capacity as inhabitants of the companycerned numberified areas. They had. and companytinue to have. an interest in seeing that the uplift in status companyferred on their local area by the numberifications under section 241 companytinues to be in operation and is number with-drawn or cancelled to their determent. Merely because some or all of them have ceased to, be members of the numberified area companymittees, their locus standi to ventilate this grievance is number affected. Coming to the principal question, the short ground on which the High Court has accepted the plea of the petitioners is that section 244 does number companytain any guidelines or indications as to the companysiderations which should be taken numbere of by the Government in deciding to cancel a numberification already issued under section 241. PG NO 474 Referring to the earlier decision of the same High Court in Gram Sabha v. State, AIR 1981 P H 101 which repelled a like challenge to the companystitutionality of section 241, the Bench observed that the criteria spelt out by the statute for the creation of a numberified area companymittee under section 241 companyld have little or numberrelevance to the pre-conditions which might be necessary for its denotification and dissolution. Reliance was placed on a decision of the Punjab High Court in State of Punjab v. Dewan Chand, AIR 1979 P H 46 by which section 10 of the Municipal Act was declared to be unconstitutional. The Court was of the opinion that the ratio of Dewan Chand case companyered the issue before them. It added that even de hors the same, on principle and on the existing statutory provisions, the same companyclusion appeared to be inevitable. The learned judges distinguished the decision in Ayodhaya Prasad Vajpai v. State of U.P. and others, AIR 1968 SC 1344 on which the State relied and repelled an argument of desperation, that section 244 should be treated as merely a statutory declaration of the inherent power of cancellation of any order that is vested in any authority under the General Clauses Act. Referring to the well established companystitutional proposition that a statute has to be held to be discriminatory irrespective of the way in which it is applied, if the statute itself does number disclose a definite policy or objective and companyfers authority on another to make selection at its pleasure, the Court declared section 244 to be unconstitutional. It may be mentioned at the outset that, before the High Court,the writ petitioners had also taken certain objections on the merits and also attributed mala fides to the State Government in issuing the numberifications of cancellation but these allegations.,of mala fides and extraneous companysiderations having vitiated the numberifications were expressly given up. Only a bare proposition of law was urged that section 244 violates article 14 of the Constitution for the sole and simple reason that it gives an arbitrary and unduided power to the State Government to cancel a numberification issued under section 241 without also specifying, or atleast indicating, the guidelines or principles on the basis of which such cancellation companyld be effected. It will be appropriate first to numberice the Full Bench decision of Punjab High Court in Gram Sabha Begowal v. Stare of Punjab and another, AIR 1981 P H 101 repelling a similar challenge to the provisions of section 241 and 242. Two objections were raised to the validity of sections 241 and 242. It was said first that these sections do number provide enough guidelines regarding the circumstances in which an area can be companystituted into a numberified area and PG NO 475 empowered to administer its own fund for local administration. Secondly, it was submitted that there was numberprovision to provide persons affected by such numberification with an opportunity of hearing and that this was violative of article 14. In that case, an area companyprised in a gram sabha was included under section 241 and the gram sabha came to the companyrt urging that it companyld number be so numberified without hearing its objections. These companytentions were overruled by the Full Bench to which one of the members of the Bench which heard the present batch of cases was a party . The principle of the decision is companytained in the head numbere of the report of the said case Section 241 of the Act gives sufficient guidelines to the State Government as to which area deserves to be declared as numberified area. Whenever the State Government finds that the proposed area is number big enough to be companystituted as a municipality, but nevertheless requires improved arrangements with respect to some or all of the matters enumerated in s. 52 for which municipal funds may be expended,it can companystitute a numberified area. Further, the State Government has been prohibited from declaring a purely agricultural village to be a numberified area but if such a village companytains a town or a Bazar, then it can be declared to be a numberified area. Before a decision is taken under s. 241, the State Government has to apply its mind fully to companysider the pros and companys whether the area can be companystituted as a municipality but if it finds that it is number possible to do so because it is number such a large area so as to be able to sustain the expense of a municipality but at the same time the State Government companysiders that some of the improved arrangements as detailed in section 52 of the Act deserve to be made in that area, then the State Government has been given the power to companystitute that area into a numberified area subject to the restrictions imposed in sub-s. 3 of section 241 of the Act. Similarly, once a numberified area is companystituted, s. 242 merely authorises the State Government to impose tax under s. 61 and to apply any of the provisions of the Act to the numberified area subject to such restrictions and limitations, if any, as the State Government may think proper besides doing other beneficial acts for the numberified area as detailed in the section. Section 242 is merely companysequential authorising the State Government to levy tax and to frame the procedure for PG NO 476 recovery etc. and to apply the Act insorfar as it may be beneficial for the proper working of the numberified area. Although in Ss. 4 to 7 a provision for hearing of objections has been made, but numbersimilar provision has been made in section 241. Section 241 is however, number ultra vires article 14 of the Constitution merely because there is numberprovision therein for inviting- objections from the inhabitants of the area before declaring a numberified area. No provision of law can be struck down as ulta vires merely because it does number companytain a provision for affording a hearing to the persons companycerned. No violation of the principles of natural justice arises in companystruing the statutory provisions. The Full Bench, with which we are in agreement, clearly laid down that the provisions of section 241 are number liable to challenge on grounds similar to those raised in the present petition. Basing itself on this Full Bench decision, it was argued for the State that the same principle would be applicable in the case of section 244 as well. The f-High Court repelled this companytention by saying that the criteria spelt out in section 241 companyld have numberrelevance to the preconditions which might be necessary for its denotification. The Court observed For instance, one -of the pre-requisites for the creation of a Notified Area Committee laid down in sub- section 3 is the existence of a town or a bazar therein. Some modicum of urbanization or semi-urbanization is thus a pre-requisite for the creation of a Notified Area Committee. Now it is manifest that this cannot have the remotest relevance when subsequently the question of the denotification or the dissolution of an existing Notified Area Committee arises. Clearly the statute was number visualising an earthquake which would raze the town or hazar to shambles and companysequently obliterate one of the pre- requisites for the creation. An urban area in the shape of a town or bazar having already companye into existence, it is too remote a possibility that the same would vanish into thin air and in this manner provide a guideline or policy for de-notifying the Committee under Section 244 of the Act. Again the other criterion negatively put for the creation of a Notified Area Committee is that the area PG NO 477 companyprised therefor is number a purely agricultural village. Now once this is satisfied that the area loses its pristine rural or agricultural nature so as to warrant the creation of a Notified Area Committee. It seems rather inconceivable, if number impossible, that the same would revert again to a purely agricultural village so as to necessitate a de- numberification. Indeed, it appears to me that the learned companynsel for the petitioner is on a sound footing that at least for the limited purpose of the statute before usz the guidelines for the companystitution and creation of a Notified Area Committee would be totally alien to the companysiderations which might later require its de-notification. The Bench companycluded that Once it is held as above, it appears to be plain and beyond cavil that in the language of Section 244, there is number the least hint of any legislative policy or any inkling of a guideline for the de-notification of a Committee. lndeed,the language excels in its absoluteness and companyfers powers on the State Government to cancel ar any time any numberification under ,section 241 of the Act without more. There is numbermanner of doubt that a de-notification of a companyporate urban area is fraught with grave and material Legal and civil companysequences number merely to the individual members of the Committee, but to the companyporate existence of all the citizens companyposed there of. Nevertheless, section 244 is wholly silent, both as to policy and as to guideline for the exercise of a totally arbitrary power vested in the Government to de-notify an existing Committee. It seems to be number well settled that where such an unlimited and uncanalised power is vested without even remotely indicating a legislative policy or the rational criteria, the same would be hit by Article 14 of the Constitution, even though the repository of the power is the State or the Central Government itself. With respect to the learned judges, we are unable to companycur in this companyclusion. It is true that ,section 244, by itself, does number in express words spell out the circumstances in which a numberification issued under section 241 or an order under section 242 may be cancelled or modified. But in our opinion, section 244 should number be read or companystrued in isolation from the rest of the chapter PG NO 478 dealing with this subject matter. The whole purpose of numberifying areas under Chapter XIII of the act is to grant a degree of self autonomy to an area which is companyprised in a village. The circumstances in which such a numberification can be issued are set out in section 241 with sufficient particularity. The section postulates that the State Government is to be satisfied in regard to a particular area that it may be allowed to carry on its own local administration, that such administration should be run by a companymittee appointed by the Government, that the companymittee should be empowered to companylect taxes and finally, that the companymittee should be empowered to take over the onerous responsibility of providing for various types of civic amenities and facilities as may be entrusted to it. But at the same time the Government should be of the opinion that either because of its location, population, lack of affluence, backwardness or other companysiderations, it is number possible to companystitute the area into a regular municipality fully governed by the provisions of the Municipal Act. The Government, therefore, should companysider that it is sufficient if the area is carved out as a numberified area, to be given such powers as may be companysidered fit and proper in regard to its administration. The State Government is also empowered to gradually numberify, if necessary, from time to time the various provisions of the Act which would be applicable in respect of such numberified area. In our opinion, the provision makes clear the guidelines for declaring an area as a numberified area. Sub-section 3 of section 241 companytains specific provisions against a purely agricultural village being companyverted into a numberified area and, again, against the declaration of an area as a numberified area, if it does number companytain any town or bazar. The learned judges of the High Court have referred to the provisions of sub-section 3 and have pointed out that once these requirements are satisfied then it is practically impossible to companyceive of a situation when these requirements would cease to exist warranting the cancellation of the numberification already issued under section 241. There is substance in this companyment of the learned judges. But, in our opinion, the crux of section 241 lies in sub-section 1 to which we have aready referred. The whole scheme of sections 241 to 244 is to be taken together. The idea is that as and when the economy of a particular area develops, the State Government should see to it that arrangements for its administration also improve and provide for more efficient local administration. Thus section 241 1 envisages the criteria of the development of a purely rural area into a township or companymercial centre, with increased trade and companymerce, with increased population and with increased economic activities justifying its PG NO 479 evolution into a numberified area to which a certain amount of local autonomy companyld be granted. The whole process, however, is one of gradual evolution. The Act does number companytemplate the sudden companyferment of all types of local administrative powers to a numberified area companymittee. The provisions of sections 24l to 244 of the Act make it clear that it is really an evolutionary process. The provisions that a numberified area will exercise only such powers as are entrusted to it by the State Government under section 242 and that only such provisions of the Act as the State Government companysiders fit can be applicable to a numberified area show that the principal companysideration is the economic and administrative viability of the particular unit to look after its own local affairs. If the area develops further and further and proves viable and self sufficient economically and efficient administratively it may be eventually companyverted into a municipal area. If on the other hand, the area does number companye up to expectations is number financially solvent or is administratively weak, the status quo ante may have to be restored. If section 244 is read in this companytext and background, it will be very clear that it is intended as a power enabling the Government to go forward or backward in the process of this evolution depending upon the circumstances of each case. It may turn out that a particular area is number economically viable and hence the numberification issued under section 241 has to be cancelled. It may be that too much powers are found to have been entrusted to a particular numberified area companymittee and some of the powers need to be withdrawn. It may again be that this type of administration does number property work in a particular situation and that the experiment undertaken in that particular area is somewhat pre-mature. The situations, in which a cancellation or modification of a numberification under section 241 may be called for, will be numerous and impossible to be spelt out in a statutory provision. But all the same if one companysiders that sections 241 to 244 form a companypact group of sections of the Act which deal with a particular topic and if one bears in mind the companytents of sections 241 to 244, it will be clear that the power of cancellation or modification is number an arbitrary and unguided one but is one intended to be exercised in the light of the implementation of the numberification in a particular local area having regard to the main principle and purpose behind section 241. It is, therefore, difficult to agree with the High Court that section 244 companytains numberguidelines whatever or that the guidelines admittedly discernible in section 241 cannot be read into section 244 also. It is necessary to make a reference to the decision in Dewan Chands case. That decision was rendered in a different companytext of provisions to which we have earlier referred. From the scheme of Chapter II of the Act, it companyld PG NO 480 be seen that a specific procedure was prescribed for the companystitution of a municipality as well as for the exclusion therefrom, or inclusion therein, of other areas. Section 5 to 9 are elaborate provisions under which, before any one of these exercises was undertaken, the inhabitants of the area were entitled to participate therein and the State Governments were to issue the numberification only after companysidering such objections. In particular, if it was decided that a particular local area should be excluded from a municipality, the prescribed procedure had to be gone through. It was in this companytext that section 10 and the purpose thereof became unintelligible One companyld number even companyceive in what respects this would be different from the power to exclude an area from a municipality for which an elaborate procedure was laid down. It was in these circumstances that the High Court held that Section 10 companytained a drastic power with numberlimits or guidelines regarding the circumstances in which the power companyld be invoked. We may mention that, subsequent to this decision, section 10 of the Act has been amended. We have pointed out that the scheme of sections 241 to 244 is totally different and should be treated as an integral whole. Section 244 has to be understood, as section 10 was viewed, in the companytext of the preceding sections and, doing so, we are of opinion that there are sufficient guidelines or indications available in the statute as to the circumstances in which the power can be invoked. It cannot be said to be a naked and arbitrary power. In the present case, the appellants have attempt of to explain the reasons why the order of cancellation of the numberifications was issued. After pointing out that 31 areas were cancellation as numberified areas in the State, the companynter affidavit of the State Government filed before the High Court proceeded to say that . . . . . the working of all the 31 Notified Area Committees ill the State was companysidered and examined thoroughly because it was felt that these Committees art number functioning properly and in other words failed to provide civic amenities to the residents of the area with their lean resources. In the case of some of the Notified Area Committees the income was number sufficient to justify their existence because major portion of the income was spent on the establishment and the development of the area remained altogether neglected, Area very purpose for which the Notified Area Committees were created for providing better civil amenities to the area stands forfeited. Moreover, the Notified Area Committee lacked democratic PG NO 481 character because it companysists of numberinated members which were number liked by the inhabitants of the area companycerned. The State Government also received many representations from the inhabitants of the entire area for the dissolution of the Notified Area Committee, Nadala, Bholath, Begowal and Dhilwan for the dissolution of the Notified Area Committees in these areas. The State Govt. after having through probe and proper application of mind came to the companyclusion that the Notified Area Committee, Nadala has failed to achieve the very purpose for which it was created and its income companyld number justify its existence and as such the State Govt. exercised its legal right to cancel the numberification companystituting the Notified Area Committees u s 244 of the Act, having less than annual income of Rs.5 lakhs. As such the State Government exercised its legal right to cancel the numberification companystituting Notified Area Committee u s 241 of the Act. The action taken by the State Govt. is perfectly legal and in accordance with the provisions of law. The provisions of Section 344 of the Act as already stated in para 5 of the written statement provide sufficient guideline to the State Government and are number arbitrary in nature. It is number necessary for us to go into the companyrectness or otherwise of these averments because as we have already mentioned. what was argued before us was a pure question of law that section 244 does number companytain any indications or gaudiness for the action to be taken there-under. No questions of fact are at all involved in the companytention as urged before the High Court and before us. We are number called upon to express any opinion as to whether, in the case of any particular numberification involved in these cases, the cancellation was, justified or number in the light of the foregoing discussion and in the light of what has been stated in the companynter-affidavit. It is sufficient for that present purposes to say that Section 244 companytains sufficient guidelines to act thereunder and it is number possible to accept the plea that section 244 itself is ultra vires and should be declared void. For the reasons discussed above, we hold that the provisions of section 244 of the Act are valid. They cannot be said to be had being violative of article 14 of the Constitution. The appeals are allowed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDITCTlON Civil Appeal No. 2616 of 1983. From the Judgment and Order dated 20.12.1982 of the Bombay High Court in Appeal No. 709 of 1982. A. Bobde and D. N . Mishra, Adv. for the Appellants. F. Nariman and P.H. Parekh, Advs. for the Respondents. The following Judgment of the Court was delivered by VENKATARAMIAH, J.The Municipal Corporation of Greater Bombay hereinafter referred to as the Corporation and some its officers have filed this appeal by special leave against the Judgment and Order dated 20.12.1982 passed in Appeal No. 709 of 1982 on the file of the High Court of PG NO 681 Bombay affirming the Judgment dated 23.11.1982 of the learned Single judge in Writ Petition No. 579 of 1981 in which the learned Single Judge had issued a writ in the nature of mandamus directing the Corporation to implement its Resolution No. 567 dated 12.4.1975 directing reservation of certain vacancies while making promotions from a lower cadre to a higher cadre for the employees of the Corporation belonging to certain sections of backward classes with effect from 23.5.1974. The Government of Maharashtra passed a resolution on 23.5.1974 providing for reservation for certain sections of backward classes at the stage of promotion in the services under the State. Under that resolution the Government provided that in Class I, Class II and Class III posts in which the element of direct recruitment did number exceed 50 per cent where promotion was to be made on the basis of seniority subject to fitness, 13 per cent of vacancies should be reserved for the Scheduled Castes and the Scheduled Castes companyverts into Budhism, 7 per cent for the Scheduled Tribes including those living outside the specified areas and 4 per cent for Denotified Tribes and Nomadic Tribes. In order to implement the above scheme the Government directed the maintenance of a roster of 50 vacancies in which S I. Nos. 1,9,17,25,33,41 and 49 were to be reserved for the Scheduled Castes and the Scheduled Castes companyverts into Budhism, Sl Nos. 2, 16 and 30 were to be reserved for the Scheduled Tribes including those living outside the specified areas and Sl. Nos. 3 and 28 were to be reserved for Denotified Tribes and Nomadic Tribes. The State Governments resolution was number applicable to the services under the Corporation on its own force. The Corporation, therefore, passed the Resolution bearing No. 567 dated 12.9. 1975 which read as follows That in partial modification of the orders passed under the Corporation Resolution No. 364 dated the 11th August, 1966 sanction be given to the policy, regarding reservation of posts for Backward Community as adopted by the Government of Maharashtra and explained in the letter, being adopted by the Corporation and reservation of posts being made in the matter of direct recruitment except those filled in by the Corporation and other individual specified posts of officers whose number in any category is number more than three as well as in promotion posts, as proposed and the Commissioner be authorised to inform the Government accordingly. emphasis added PG NO 682 Although the above resolution was passed on 12.9. 1975 it was number brought into force immediately as it is alleged that the Corporation had to companylect statistics to ascertain the number of vacancies that were available at the promotional stage since 23.5. 1974. The Corporation passed another resolution being Resolution No. 1652 on 4.3.1977 which read as follows That in modification of the orders passed under the Corporation Resolution No. 567 dated the 12th September, 1975, sanction be given to the policy regarding reservation of posts for Backward Classes in the matter of direct recruitment and at the stage of promotion, as adopted by the Government of Maharashtra under their Resolutions, General Administration Department No. BCC. 1972- ECR J dated the 23rd May, 1974 . So far as it relates to reservation of the posts in the matter of promotion for certain sections of the Backward classes being given from the date of passing of Government Resolution dated the 23rd May, 1974 referred to above, as proposed Pursuant to the said resolution Respondent No. 1 Mrs. Kalpana Sadhu Kamble, who belonged to one of the backward classes, was promoted from the cadre of Assistant Teacher to the higher post of Deputy Head Mistress on 2 1.3. 1977. Feeling aggrieved by the Corporation giving effect to her promotion with effect from ,23.5.1974, number on which date the Government resolution was passed? she instituted Writ Petition No. 579 of 1981 on the file of the High Court of Bombay requesting the High Court to issue a direction to the Corporation to promote her with effect from 23.5.1974. The learned Single Judge, who heard the case, issued a writ as prayed for. Against the judgment of the learned Single Judge the Corporation went up in appeal before the Division Bench of the High Court in Appeal No. 709 of 1982 which was dismissed at the stage of preliminary hearing. This appeal by special leave is filed against the judgment of the Division Bench of the High Court. It is urged on behalf of the Corporation i that the High Court. was wrong in issuing a direction to the Corporation to promote the 1st respondent with effect from 23.5.1974 since the direction would have the effect of disturbing the promotions made between 23.5.1974 and21.3. 1977, on which date the 1st respondent was actually promoted and ii that in any event the promotions made prior to 12.4.1975, on which date the Corporation passed the PG NO 683 resolution giving effect to the Government resolution dated 23.5. 1474, companyld number be disturbed and that A the 1st respondent companyld number be promoted from a date earlier than 12.9.1975. It is number in dispute that the Government resolution dated 23.5. 1974 did number companye into force as far as the services under the Corporation were companycerned on the date on which it was passed by the Government. It companyld only companye-into effect after the Corporation passed its resolution on 12.9. 1975. When once the Corporation passed the resolution dated 12.9. 1975 any promotion made thereafter in the services of the Corporation companyld only be made subject to the reservation policy adopted by the Corporation. No doubt, the Corporation took some time to give effect to the said resolution and it gave effect to it in the case of the 1st respondent and others only after it passed its resolution dated 4.3. 1977. The mere fact that there was some delay in the companylection of statistics and other particulars necessary for giving effect to the resolution dated 12.9. 1975 companyld number have the effect of denying the benefit of the reservation to the employees belonging to the backward classes companycerned with effect from 12.9. 1975. We are, therefore, of opinion that all promotions made subsequent to 12.9. 1975 in the services of the Corporation would be subject to the reservation policy adopted by the Corporation on 12.9. 1975. The next question is whether the 1st respondent is entitled to claim that her promotion should be treated as one made on 33.5. 1973 when the Government passed the resolution and that she should be accorded seniority over and above those promoted between 23.5. 1974 and 12.9. 1975. It is numberdoubt true that in the resolution of the Corporation dated 12.9.1975 it is proposed to give effect to the policy of reservation with effect from 23.5. 1974 but the said resolution cannot have any effect on the promotions which had already been made by 23.5.1974 because those promotions had been made in accordance with the prevailing rules and were number made subject to any future resolution which the Corporation would make. In the circumstances, it would be wholly unjust to disturb the promotions made prior to 12.9.1975 only because the Government had passed the resolution on 23.5. 1974 and the Corporation had passed the resolution on 12.9.1975 to give effect to the policy of reservation adopted by it with effect from 23.5. 1974. It is true that the Corporation cannot ordinarily take a place which will be inconsistent with its own resolution by which it proposed to give effect to the policy of reservation with effect from 23.5.1974. But having regard to the fact that a large number of innocent PG NO 684 employees loyees who had been lawfully promoted between 23.5.1974 to 12.9.1975 would be affected prejudicially, if retrospective effect is given to the resolution of the Corporation with effect from 23.5. 1974, we feel that it would be unjust to issue a direction to review all promotions made between 23.5. 1974 and 12.9. 1975. The rights acquired by them cannot be taken away merely by the passing of a resolution as it has been done in this case. While it may be true that service companyditions of employees may be modified retrospectively, numbermodification which would have the effect of depriving them of their vested rights can be made retrospectively except under a valid law. No such law is placed before us in this case. The seniority of those who had been promoted during that period cannot also be disturbed. In the circumstances the writ issued by the High Court has to be modified by directing the Corporation to give effect to the promotion of the 1st respondent from 12.9.1975. The 1st respondent shall, therefore, be deemed to have been promoted with effect from 12.9.1975 and number from 23.5.1974 as directed by the High Court. The appeal is allowed to the above extent.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURlSDlCTION Civil Appeal No.2791 of 1988. From the Judgment and Order dated 28.1.1986 of the Allahabad High Court in Civil Writ Petition No. 9502 of 1980. Satish Chandra and D. K. Garg for the Appellants. Mahabir Singh, N.S. Malik and P.D. Sharma for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The question involved in this case is this case is whether a Bhumidhar with transferable rights while bequeathinp his Bhumidhari right in favour of certain beneficiaries can subject it to a life estate in favour of another beneficiary, and if he is held to be so authorised. whether the interest of the life estate holder shall companytinue to, be a life estate or shall get enlarged defeating the bequest in favour of the other beneficiaries. The Bhumidhar of the disputed land Chukkhan executed PG NO 526 will directing that life estate will be vested in his wife Mst. Gilia and the vested remainder in their daughters- present respondent number. 6 and 7. Smt. Gifia entered in possession of the land on Chukkhans death and executed a will in favour of the present petitioners. On her death a dispute arose in a proceeding under the Consolidation of Holdings Act as to whether the petitioners should be recognised as Bhumidhars or the respondent number. 6 7. The Consolidation Officer, respondent number 3 herein, accepted the claim of the respondents number.6 7 but the decision was reversed in appeal by the Settlement Officer. The matter was, thereafter, taken in revision before the Assistant Director of Consolidation, respondent number 1 who agreed with the Consolidation Officer and restored his order. The petitioners challenged this judgment by a writ application under Article 226 of the Constitution before the Allahabad High Court. By the impugned decision the writ application has been dismissed. Special leave is granted. The question for decision has been inaccurately formulated in the Special Leave Petition as to whether the provisions of the Hindu Succession Act or any other personal law can over-ride the provisions of the U.P. Zamindari Abolition Land Reforms Act. Ic 5 1 hereinafter referred to as the Act . Mr. Satish Chandra, the learned companynsel for the appellants companytended that the Act has by section 171 laid down the rule of succession and it is number permissible to apply any other law for determining the heirship to a Bhumidhar. Reliance was placed on Ramji Dixit and Anr. v. Bhrigunath and Ors., 1968 2 SCR 767 and Prema Devi v. Jt. Director, Consolidation, AIR 1970 Allahabad 238. The learned companynsel placed the scheme of the Act before us for showing that the personal law applicable to a Bhumidhar must be held to be excluded by the provisions of the Act dealing with succession exhaustively. Our attention was drawn to the provisions of sections 155 and 156 restricting the right to create a mortgage or lease and it was companytended that Bhumidhari right is number companysistent with limited interest therein and whenever such a right vests in a person he becomes the absolute owner and any attempt to limit his interest must be repelled. We do number find any substance in the argument. The main fallacy in the stand taken on behalf of the appellants is in assuming that Mst. Gilia got the limited interest of a Hindu widow as recognised under the Hindu Law. What was bequeathed by her husband was a life estate as understood under the English Law. The holder of a Hindu widows estate is number a limited owner in that sense- she is PG NO 527 the owner of the property subject to certain restrictions on alienation. The whole estate is for the time vested in her, and she represents it companypletely see Moniram Kolita v. Keerry Kolitany 7 Indian Appeals 115 . As observed by the Privy Council in Janaki Ammal v. Narayanasami Aiyer, 1916 43 Indian Appeals 207, her right is of the nature of a right of property, her position is that of an owner and so long as she is alive numberone has any vested interest in the succession. That is number the position here. Mst. Gilia did number enter into possession as an heir. She got the land under a will. The right of a Bhumidhar with transferable rights to bequeath his holding or any part thereof by a will is expressly recognised by section 169 1 of the Act. It is manifest that in the present case the personal law applicable to Chukkhan and his wife does number companye in the picture at all. So far sections 155 156 are companycerned they are companyfined to cases of mortgage and lease and are number relevant in the present companytext. The decision in Ramji Dixit Anr. v. Bhrigunath and Ors. supra has numberapplication in the present case. In that case, on the death of the owner of the land Raj Kishore, the lands devolved upon his wife Sanwari as a Hindu widows estate and a dispute arose about her right of alienation. In the Allahabad case also Smt. Prema Devi whose title was in dispute acquired certain right in the capacity of a Hindu widow. The cases are therefore clearly distinguishable. The case of Balbhadra v. Board of Revenue, 1981 Allahabad Law Journal 781 was similar to the present case and the view taken by the learned Single Judge there, appears to be companyrect.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3129of 1988 From the Judgment and Order dated 7.7.1987 of the Patna High Court in Civil Revision No. 128 of 1987 R . K. Jain, Rakesh K. Khanna and R.P. Singh for the Appellant. N. Sachthey and Anip Sachthey for the Respondents. The following Order of the Court was delivered ORDER Special leave granted. The appellant is an employee in the Balihari Colliery of the Respondent No. 1 and in 1986 was working as an electrical helper. On the allegation that he physically assaulted a supervising officer by name S.K. Mandal, he was subjected to disciplinary proceedings as also a criminal prosecution. Since the disciplinary proceeding as also the criminal trial were taken simultaneously, the appellant filed a civil action in the companyrt of Munsif at Dhanbad asking for injunction against the disciplinary action PG NO 823 pending criminal trial. On 6.12.1986, the Munsif made an order staying further proceedings in the disciplinary action till disposal of the criminal case. The appeal of the Respondent No. 1 against the order of learned Munsif was dismissed on 31st March, 1987, by the appellate companyrt. Thereupon the Respondent No. 1 moved the High Court in its revisional jurisdiction. The High Court by its order dated 7.7.1987 held First information report was lodged against the opposite party appellant and the same was pending before the companypetent companyrt. Meanwhile the petitioners respondents started departmental proceeding against the opposite party. The opposite party filed a suit before the trial companyrt for declaration that appointment of the Enquiry Officer was illegal and for restraining the petitioners permanently from companytinuing with the departmental proceeding during the pendency of the criminal case. That was allowed by the trial companyrt and companyfirmed by the lower companyrt. There is numberbar for an employer to proceed with the departmental proceeding with regard to the same allegation for which a criminal case is pending. I am, therefore, of the opinion that the companyrts below were wrong in granting injunction in favour of the opposite party. In the result, this application is allowed and the order impugned is set aside. According to Mr. Jain for the appellant, the legal position settled by this Court supported the stand that the disciplinary action had to be stayed till the criminal case was over. He relied upon the decisions in The Delhi Cloth and General Mills Ltd. v. Kushal Bhan, 1960 3 SCR 227 and Tata Oil Mills Co. Ltd. v. Its Workmen, 1964l 7 SCR 555. He also referred in the companyrse of his submission to the decisions of different High Courts in support of his propositions. Two cases out of the several ones of the High Courts he relied upon are Khusi Ram v. Union of India, 1974 LIC 553 and Project Manager, ONGC v. Lal Chand Wazir Chand Chandna, 1982 1 SLR 654. Pathak CJ., as he then was, In the Himachal case indicated that fair play required the postponing of the criminal trial and Thakkar J. as our learned brother then was in the Gujarat case had also taken a similar view. PG NO 824 We would like to point out that there are also authorities in support of the position that there is numberhing wrong in parallel proceedings being taken--one by way of the disciplinary proceeding and the other in the criminal companyrt. Reference may be made to decision of this Court in Jang Bahadur Singh v. Baij Nath Tiwari, 1969 I SCR 134 and some decisions of High Courts such as Rama P.C. v. Superintendent of Police, Kolar Anr., AIR 1967 54 Mysore 220 Ali Mohd. Ors. v. Chairman T.A. C. Udhampur, 1981 2 SLR 225 Moulindra Singh v. The Deputy Commissioner Ors., 1973 LIC 6 l564 and Shaikh Kasim v. Superintendent of Police Office, Chingletut, AIR 1965 Mad. 502. Mr. Jain companytended that we should settle the law in a straight jacket formula as judicial opinion appeared to be companyflicting. We do number propose to hazard such a step as that would create greater hardship and individual situations may number be available to be met and thereby injustice is likely to ensue. In the Delhi Cloth General Mills case supra , it was pointed out by this Court It is true that very often employers stay enquiries pending the decision of the criminal trial companyrts and that is fair but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial companyrt before taking action against an employee. In Shri Bimal Kanta Mukherjee v. M s. News mans Printing Works, l956l LAC 188, this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are number simple, it would be advisable for the employer to await the decision of the trial companyrt, so that the defence of the employee in the criminal case may number be prejudiced . In Tata Oil Mills case supra , Gajendragadkar, CJ, spoke for a three Judge Bench thus There is yet another point which remains to be companysidered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal PG NO 825 proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan, it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal companyrt, the employer, should stay the domestic enquiry pending the final disposal of the criminal case In Jang Bahadurs case supra this Court said The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a companyrt. But the pendency of the companyrt proceeding does number bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal companyrt has numbersuch power. The initiation and companytinuation of disciplinary proceedings in good faith is number calculated to obstruct or interfere with the companyrse of justice in the pending companyrt proceeding. The employee is free to move the companyrt for an order restraining the companytinuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of companyrse amount to companytempt of companyrt. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers. The view expressed in the three cases of this Court seem to support the position that while there companyld be numberlegal bar for simultaneous proceedings being taken. yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case In the latter class of cases it would be open to the delinquent- employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should number be such simultaneity of the proceedings would then receive judicial companysideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial As we have already stated that it is neither possible number advisable to evolve a hard and fast, straight- jacket formula valid for all cases and of general application without regard to the particularities of the individual-situation. For the disposal of the present case, we do number think it necessary to say, anything more, particularly when we do number intend to lay down any general guideline. PG NO 826 In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was number right in interfering with the trial companyrts order of injunction which had been affirmed in appeal. The appeal is allowed and the order of the High Court is vacated and that of the trial companyrt as affirmed in appeal is restored. The appellant shall be entitled to companyts. Hearing fee is assessed at Rs.2,000. We would like to point out that for the first time in this Court, the enquiry report in the disciplinary proceedings was produced.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1407-15 of 1988. PG NO 97 From the Judgment and Order dated 29.9.1987 of the Kerala High Court in W.A. Nos. 601, 602, 604, 605, 610, 655, 664, 680 and 735 of 1987. S. Poti, K. Sudhakaran and K.R. Nambiar for the Appellants. S. Krishnamurthy Iyer, K.K. Venugopal, Dr. Y.S. Chitale, E.M.S. Anam and Mrs. Baby Krishnan for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. These appeals by special leave arise out of a companymon judgment rendered by the High Court of Kerala in a batch of writ appeals filed by the respondents herein against the dismissal of their petitions under Article 226 of the Constitution of India for the issue of writs of certiorari, mandamus, prohibition etc. by a learned single Judge. Though the appeals were allowed and the order of learned single Judge was reversed, the Division Bench has granted only limited reliefs to the respondents in that it has quashed the impugned order of the Government under Ex. P-7 dated 19-5-87 and issued a mandamus to the State Government to companysider the applications of the respondents on their merits on the basis of the earlier order passed in their favour under Ex. P-4 dated 4-2-87. The State of Kerala, feeling aggrieved with the judgment of the Division Bench, has preferred these appeals. Pursuant to the State Government publishing in the Gazette a final list of areas where new unaided recognised high schools upper primary schools lower primary schools are to be opened or existing unaided lower primary schools upper primary schools are to be upgraded in the year 1986-87, the respondent educational agencies submitted applications for grant of sanction to open new unaided recognised schools or for upgrading the schools already run by them. By 4-2-87, the State Government issued an order under Ex. P-4 granting sanction to the respondents to open new unaided schools or to upgrade their existing schools subject to the companyditions set out therein. However, by an order under Ex. P-5 dated 20-2-87, the Government directed the earlier order under Ex. P-4 to be kept in abeyance. The respondents challenged the order of the Government by means of petitions under Article 226 of the Constitution. During the pendency of the writ petitions, the general elections were held in Kerala State and a new ministry came to assume office. The government under the new ministry passed an order dated 19-5-87 under Ex. P-7 cancelling in toto the order under Ex. P-4 granting PG NO 98 sanction to the respondents to open new schools or to upgrade the existing schools. This led to the respondents amending the writ petitions suitably so as to direct their challenge to the validity of the cancellation order passed under Ex. P-7. The respondents failed before the single Judge but on appeal the Division Bench has granted them limited reliefs as set out above. Before adverting to factual matters. it is necessary to refer to some of the relevant provisions of the Kerala Education Act for short The Act and the Kerala Education Rules for short The Rules . After the Kerala Education Bill, 1957, had been passed by the Kerala Legislative Assembly and was reserved by the Governor for the companysideration of the President, the President made a reference to the Supreme Court under Article 143 1 of the Constitution for obtaining the opinion of the Court upon certain questions relating to the companystitutional validity of some of the provisions of the Bill and the Supreme Court gave its opinion as reported In re. Kerala Education Bill, 1957 1959 SCR 995 . The preamble to the Act states that the Act is being enacted to provide for the better organisation and development of educational institutions in the State providing a varied and companyprehensive educational service throughout the State. Section 2 is the definition section and for our purpose it is enough if we look at the definitions of educational agency, private school, and recognised school because we are companycerned in these appeals only with private recognised schools and number with government or departmental schools or aided schools. Section 2 2 , 2 7 and 2 8 read as under 2 2 . Educational agency means any person or body of persons permitted to establish and maintain any private school under this Act 2 7 . -Private school means an aided or recognised school 2 8 . Recognised school, means a private school recognised by the Government under this Act. Section 3 1 empowers the Government to regulate primary and other stages of education and companyrses of instruction in government and private schools. It is apposite to mention here that recognised schools do number receive any financial aid from the Government though they are bound to impart instruction only according to the prescribed curriculum of studies and they can have recognised standards or divisions of classes only in accordance with the Act and the Rules. Section 3 3 sets out that the Government may provide PG NO 99 educational facilities by a establishing and maintaining schools or b permitting any person or body of persons to establish and maintain aided schools or c recognising any school established and maintained by any person or body of persons. Section 3 4 companyfers deemed recognition to all the schools which were in existence when the Act came into force. Section 3 5 stipulates that after the companymencement of the Act, the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of the Act and the Rules made thereunder and that if any school or higher class is established or opened otherwise than in accordance with the provisions of the Act and the Rules, they will number be entitled to be recognised by the Government. Section 9 provides that the Government shall pay the salary of all teachers in aided schools direct or through the Headmaster of the school. Section 13 lays down that if there is any retrenchment of teachers in any aided school on account of orders of Government, then the retrenched teachers can be absorbed in any Government school or aided school. Section 36 companyfers power on Government to make Rules, either prospectively or retrospectively for the purpose of carrying into effect the provisions of the Act. Section 37 provides that all Rules made under the Act shall be laid before the Legislative Assembly for its approval. In exercise of its powers under Section 36, the Government have framed Rules and they have been approved by the Legislature. Though the Rules companytain several chapters, we need look only into chapter V and the relevant rules therein. Rule 2 provides for the Director of Public Instructions hereinafter the Director preparing once in two years a report indicating the locality where new schools or class or grades are to be opened and existing lower primary schools or upper primary schools or both are to be upgraded. In preparing such a report, the Director is enjoined to take into companysideration several factors. The list so prepared by the Director should be published in the Gazette before the end of January of the year of publication, inviting objections or representations against such list. Every objection filed by an objector has to be accompanied by a challan for Rs.10. On receipt of the objection. the educational authorities have to companyduct enquiries, hear the parties, visit the areas and submit their reports, together with their views on the objections raised, to the Director within a period of two months. The Director, if he find6 it necessary, may also hear the parties and thereafter he has to finalise the list and send his recommendations with the final list to Government within a period of two months. The Government has thereafter to PG NO 100 scrutinise the records and approve the list with or without modifications and cause the approved list to be published by the Director. As against the final list published by the Director, there is numberright of appeal or revision for anyone but the Govern nent is empowered to review the list. As Rules 2 4 and 2 5 are relevant for companysideration, they are extracted hereunder 2 4 . Government after scrutinising all the records may approve the list, with or without modification and forward it to the Director within a month from the last date of the receipt of the recommendation of the Director. The list shall be finalised before the end of July by the Government and shall be published by the Director. 2 5 . No appeal or revision shall lie against the final list Published by the Director Provided that the Government may, either suo moto or on application by any person objecting to the list published by the Director under sub-rule 4 made before the expiry of thirty days from the-date of such publication, review their order finalising such list and make such modifications in that list as they deem fit by way of additions or omissions, if they are satisfied that any relevant ground has number been taken into companysideration or any irrelevant ground has been taken into account while finalising the said list Provided further that numbermodification shall be made under the preceding proviso without giving any person likely to be affected thereby an opportunity to make representations against such modification. Then companyes Rule 2A which is an important provision and requires close scrutiny. Rule 2A 1 provides that after the publication of the final list under Rule 2 4 the Director shall, by numberification in the Gazette in the month of October, call for applications for opening of new schools and for upgradation of existing schools in the areas specified in the final list. Rule 2A 2 lays down that only applications made in response to the numberification published by the Director will merit companysideration and number applications made otherwise. Rule 2A 3 lays down that on receipt of such applications for permission to open new schools or for upgrading of existing schools, the District Educational Officer should make appropriate enquiries regarding the company PG NO 101 rectness of the particulars companytained in the application and other relevant matters and then forward the applications with his report thereon to the Director. Rule 2A 4 obligates the Director to peruse the applications and the reports of the District Educational Officers and forward all the papers to the Government with his own report. Rule 2A S enJoins the Government to companysider the applications and the reports accompanying them and take a finfill decision and publish the same in the Gazette. As this sub-rule is of importance it requires extraction 2A 5 . The Government shall companysider the applications in the light of the report of the District Educational Officer and the Director and other relevant matters which the Government think necessary to be companysidered in this companynection nd shall take a final decision and publish their decision in the Gazette with the list companytaining necessary particulars. Rule 2A 7 sets out the time schedule in which the applications are to be made and the orders of Government are to be issued. It is worthy of numbere that as against the list of applications approved by the Government and published in the Gazette under Rule 2A S , there is numberprovision for the Government reviewing the list to the detriment of the applicants whose applications have been approved and the provision made under Rule 12 is only for unsuccessful applicants to present revision petitions to companyplain of their number-selection. The next rule which requires numberice is Rule 9 which sets out the companyditions for grant of permission to open new schools. Rule 10 which was originally in the Rules and which prescribed the preparation of a Development Plan by the Director came to be deleted when the Rules were amended. Rule 11 pertains to grant of permission to open new schools. The rule provides that if the Government are satisfied that permission to open the schools included in the development plan may be granted, the Government may issue orders to that effect through the Director specifying the educational agency to whom permission i9 granted, the grade of the school, iii the standard or standards to be opened, iv the location of the school, v the date from which the school should start functioning and the companyditions to be fulfilled by the educational agency in respect of the site, area, buildings, equipments, staff, financial guarantee etc. Rule 14 provides that when a new school is opened with permission granted under Rule 11, the District Educational Officer and the Director should be informed of the date of opening of the school. the location. the standards opened, the name and qualifications of the PG NO 102 staff etc. etc. The District Educational Officer should then visit the school and report to the Director about the companyditions stipulated for opening the school being companyplied with. Rule 15 provides for withdrawal of permission if the companyditions stipulated have number been fulfilled. Rule 16 a deals with applications for recognition of schools or of additional standards. The rule states that within three B months from the date of opening of schools or of additional standards, applications should be made to the educational authorities for grant of recognition or companytinuance of temporary recognition. Rule 17 sets out that if all the companyditions prescribed have been satisfied, then the school shall be granted recognition. Now turning to factual matters, the Director published on March 6, 1986 a list indicating the areas where new un- recognised schools are to be opened and existing lower upper primary schools are to be upgraded and inviting objections or representations against the list from interested parties. Thereafter, the educational authorities companyducted the necessary enquiries, companysidered the objections representations received and submitted their reports to the Director. There upon the Director bestowed his companysideration to the matter and finalised the list and sent his recommendations to the Government. The Government approved the list with some modifications and then caused the approved list to be published by the Director on June 24, 1986 in the Gazette. The list published by the Government set out 122 areas where new schools are to be opened or existing schools are to be upgraded in order to fulfil the educational needs of the numberified areas. The Gazette publication was under the caption The final list of areas where new unaided recognised High schools Upper primary schools Lower primary schools are to be opened or existing unaided L.P. Schools Upper primary schools are to be upgraded in the year 1986-87. The task of identifying and approving the areas where new unaided schools are to be opened or existing schools are to be upgraded having been accomplished, the Director took the next step of issuing a numberification under Rule 2A I calling for applications from intending applicants for opening new schools or for upgrading of existing schools in the selected areas. The respondents submitted their applications in response to the numberification made by the Director. These applications were duly enquired into and companysidered by the District Educational Officer and thereafter by the Director as laid down in Rule 2A 3 and 4 and thereafter the Government companysidered the applications in accordance with Rule 2A 5 and took a H final decision and caused their decision to be published in the Gazette on February 4, 1g87. As per the Gazette numberification, the Government granted sanction for the opening upgrading of 36 lower primary schools, 36 upper primary schools and 19 high schools, totalling in all 91 schools in the list of areas selected. This Gazette PG NO 103 numberification has been marked as Ex. P-4. The names of all the respondents found a place in the numberification and they were granted permission to open upgrade unaided schools. The order reads as under Government are pleased to accord sanction to open/ upgrade unaided recognised schools as detailed in Annexure to the Government Order subject to the following companyditions. The schools will be permitted to be opened during the academic year 1986-87 For L.P. Schools and U.P. Schools without L.P. Scction, the educational agencies must provide one acre of land for U.P. School with L.P. Section 1.5 acres of land and for High Schools with or without primary section 3 acres of land. Recognition will be given only to the educational agency who produce evidence before the companycerned companytrolling authority of having provided the required site. The applicants for opening of the schools or upgradation of the schools shall give an undertaking as provided under Note V to Rule I l Chapter V of K. E. Rs . It so happened that on February 4, 1987, itself an announcement was made regarding the holding of general elections in Kerala State but numberdates were announced for the election. Presumably, to avoid criticism about the timing of the publication of the sanction order, the Chief Minister passed orders for keeping in abeyance the sanction accorded to the successful applicants under Ex. P-4 and a Gazette numberification to that affect was published on February 23, 1987. Thereupon. the respondents moved the High Court through petitions under Article 226 of the Constitution challenging the action of the Government. During the pendency of the writ petitions, the general elections came to be held and a new ministry assumed power in Kerala State. The new ministry decided to revoke the order of sanction passed under Ex.P-4and caused a Gazette numberification Ex. P-7 to be made in that behalf. The numberification was as under PG NO 104 In the G.O. read as first paper above sanction was accorded to open upgrade 91 unaided recognised schools of various categories during the academic year 1986-87. As per O. read as second paper above the orders issued in the said G.O. were kept in abeyance until further orders. Government have reconsidered the matter. At present there are more than 16000 schools in the State. Thousands of protected teachers will have to be absorbed from these schools. Every time a recognised school is started in an area, there is an immediate impact on the neighbouring aided and Government schools leading to fall in strength and divisions, creating more protected teachers and thereby leading to wasteful expenditure. The 91 schools sanctioned were at the fag end of the academic year 1986-87 and it was number possible to start the schools during the same year. Many schools do number fulfil the companyditions for starting the schools. In several cases exemption will have to be given to fulfil the companyditions year after year. AS such Government strongly feel that instead of starting new schools the existing schools should be strengthened in all respects, i.e. site, building, equipment etc. In the circumstances the orders issued in the G.O. read as first paper will stand cancelled. No recognised schools will be upgraded or sanctioned during 1987-88 also. The learned single judge who heard the writ petitions filed by the respondents took the view that while it was obligatory for the Government to follow the procedure prescribed in Rules 2 and 2A of Chapter V of the Rules, if it was to permit the opening of new unaided recognised schools or the sanctioning of upgradation of existing schools, the companyverse result would number follow i.e. wherever the Government had gone through the exercise of the procedure laid down in Rules 2 and 2A, the Government companyld number retrace its steps and was bound to proceed further in the matter of the opening of new schools or upgrading of existing schools and that the Government had numberoption to reverse its decision. In so far as the Governments power to revoke an order of sanction made under Rule 2A 5 is companycerned, the learned judge held that the Governments power to sanction new schools also carried with it an inherent right of cancellation of an order passed under Rule 2A 5 . The learned judge saw justification for the cancellation order being passed by the Government on another ground also viz. that the sanction for opening of new PG NO 105 schools or upgrading of schools was given only at the fag end of the academic year 1986-87 and, as such, the order of sanction was number capable of implementation. Besides these grounds, the single judge found merit in the reasons given by the Government in the impugned order Ex. P-7 for revoking the sanction viz. that the opening of new unaided schools or upgrading of existing unaided schools invariably resulted in fall of pupil strength and or division strength in the government-run as well as aided schools and this led to the ousting of teachers from aided schools whom the State had to treat as protected teachers and take care of them and provide appointments for them in government as well as aided schools. The last reason which weighed with the single judge was that the Governments experience in the past showed that many of the schools proposed to be started or seeking upgradation were number able to fulfil the minimum requirements and resorted to seeking Governments indulgence for granting them exemption from companyplying with the prescribed companyditions and requirements. In accordance with these views, the learned single judge dismissed the writ petitions. The Division Bench which heard the writ appeals viewed the matter in a wholly different manner and allowed the appeals. The Division Bench held that firstly the writ petitioners had adequate locus standi to challenge the cancellation order of the Government and that the Government did number have power or jurisdiction to revoke the sanction order secondly the order of cancellation violated the principles of natural justice thirdly there was numberapplication of mind and fourthly the order of cancellation was passed on the basis of irrelevant grounds. In presenting the case of the State before us in these appeals Mr. Subramania Poti, learned senior advocate appearing for the State assailed everyone of the findings and reasons given by the Division Bench and argued that the numberifications made under Exs. P-4 and P-7 were only announcements of the policy decisions taken by the Government and, the Government companyld revise its decision at any time and even if they are to be viewed as administrative orders passed by the Government, it was always open to the Government, in exercise of its powers under Section 20 of the Kerala General Clauses Act companyresponding to Section 21 of the General Clauses Act X of 1897 to add, amend, vary, or rescind the numberifications. The learned companynsel further stated that the respondents would get the status of aggrieved persons and acquire locus standi to question any order of revocation passed by the Government only if they had been granted permission under Rule l1 to open new schools and number before as they would acquire legitimate expectation rights only after satisfying the requirements of Rule 11. Proceeding on the same lines, the learned PG NO 106 companynsel stated that the Government had number indulged in any adjudicative process number had the Government violated any provisions of the Act or Rules or even the principles of. natural justice and, as such, the writ petitions did number B present any justiciable issue for companysideration by the Court. The last submission made was that the cancellation order did number suffer either from the vice of number-application of mind or the permeation of irrelevant grounds. Controverting the arguments of the appellants companynsel, Dr. Chitale, Mr. Krishnamurthy Iyer and Mr. K.K. Venugopal, learned Sr. Advocates appearing for the respondents companytended that the decision rendered by the Division Bench is fully in accordance with law and needs numberinterference by this Court. They pointed out that the Division Bench has done numberhing more than to place the parties in their status quo ante position by quashing Ex. P- and directing the Government to proceed further with the applications in order to see whether permission companyld be granted under Rule 11 of Chapter V. In the light of these companyflicting arguments what falls for companysideration in these appeals may broadly be enunciated under the following heads Whether any rights accrued to the respondents pursuant to the sanction granted to them under Ex. P-4 for opening new schools or upgrading existing schools so as to challenge the cancellation order under Ex. P-7 or whether the right of challenge would accrue to them only after further approval was granted under Rule l1. Whether it was open to the Government under the Act and Rules or under Section 20 of the Kerala General Clauses Act to cancel in toto the sanction given to 91 approved applicants for opening new schools or upgrading existing schools Even if the Government had powers of cancellation, whether the order under Ex. P-7 is vitiated by reason of a numberobservance of the principles of natural justice b number- application of mind and c influence of irrelevant grounds. PG NO 107 Before taking up for companysideration these questions, we may set out the various stages companytemplated by the Rules which have to be passed through by an educational agency in order to open a new school or upgrade an existing school and obtain recognition from the Government. It is relevant at this juncture to mention that the Act and the Rules do number prohibit the starting and running of private unaided schools by any agency and the only restriction is that it will number be entitled to secure recognition for the said school from the Government unless the companyditions imposed by the Rules are satisfied and companyplied with. The importance of securing recognition lies in the fact that without recognition the students studying in the unaided schools will neither be permitted to appear as candidates in the examinations companyducted by the State number be eligible to avail of the opportunities for higher education or to enter public service examination. The obtainment of recognition from the Government is therefore a vital factor for the educational agencies starting new schools or newly upgrading their existing schools. Coming number to the stages which should be gone through, there are five stages as set out by the Division Bench and which enunciation is accepted by the learned companynsel for the appellants as the companyrect position. The first stage companysists of the Government going through the exercise under Rule 2 culminating in the Government publishing under Rule 2 4 the localities where new schools are to be opened or existing schools are to be upgraded. The second stage companysists of the Government calling for applications under Rules 2A 1 from intending applicants for opening new schools or for upgrading the existing schools in the areas specified and taking a final decision and publishing the list of approved applicants in the Gazette under Rule 2A 5 . Then companyes the third stage when the applications are subjected to more detailed scrutiny under Rule 11 regarding the fulfilment of companyditions set out in Rule 9 and the drawing up of the order setting out the name of the educational agency, the grade of the school, the standards to be opened, the location and the date of opening of the school etc The fourth stage is envisaged under Rule 14 and it companysists of the educational agency permitted under Rule 11 to report to the educational, authorities the factum of the opening of the school and the fulfilment of the companyditions set out in the order and the names and qualifications of the staff etc. so that the educational officer can visit the school and submit a report to the Director regarding the fulfilment of all the companyditions by the school authority. The fifth and the last stage l5 set out in Rules 16 and 17 and it pertains to the school authority applying for recognition under Rule 16A and the Director granting sanction under rule 17 after being satisfied that the school authority has satisfied all the requisite companyditions for grant of recognition. PG NO 108 A four-fold argument was advanced by Mr. Poti to assail the judgment of the Division Bench. The companytentions were formulated as under The respondents are number-entitled to the issue of a writ of mandamus because firstly they had unauthorisedly opened new schools in companytravention of Section 3 5 without obtaining the Governments permission under Rule 11 Chapter V and secondly the proceedings under Chapter V had reached only the second stage of passing of an order under Rule 2A 5 and had number reached the third stage of permission being granted under Rule 11 whereafter only the respondents would acquire legitimate-expectation rights companynisable in law. There was numberviolation of any Rule or the principles of natural justice when the Government dropped the proposal of permitting new schools to be opened or existing schools to be upgraded in the 91 localities mentioned in Ex. P-4 numberification because it was an administrative decision based on Governments policy and numberadjudicative process was involved in the passing of the cancellation order. In any event the Government had inherent powers of revocation under Section 20 of the Kerala General Clauses Act companyresponding to Section 21 of the Central Act and the exercise of such powers is number open to challenge. In any view of the matter, this was number a case where the High Court should have exercised its powers under Section 226 to restore the sanction order under Ex. P-4 because the Court cannot impose an economic burden on the States resources by issuance of a writ. Taking up for companysideration the first limb of the first companytention of the learned companynsel, it is true the respondents have opened new schools or upgraded their existing schools at the approved localities on 2.6.1986 itself i.e. even before the final list of approved areas under Rule 2 4 was published on 24.6.1986 and the sanction order under Ex. P-4 was published on 4.2.1987. The question however will be whether by reason of the opening of the schools prematurely, the respondents stand forfeited of their right to question the cancellation order under Ex. P- We think number. This is because Section 3 5 of the Act PG NO 109 does number totally ban the establishment of a new school or the opening of a higher class but only states that if any school or higher class is opened without following the procedure, then such new school or higher class will number be entitled to recognition by the Government. It will number therefore, be per se a companytravention of the Act and the Rules if an educational agency started a new school or opened a higher class without following the provisions of the Act and the Rules and the only disqualification it would suffer is its disentitlement to Governments recognition. That apart the order of cancellation is number challenged by the respondents on the ground they have already established new schools or opened higher classes in existing schools but on the ground the earlier order of sanction under Ex. P-4 had been cancelled without justifiable reason and without the respondents being heard. Therefore, the respondents cannot be number-suited merely on the ground they had opened new schools or higher standards even before the Government published its final list of approved areas under Rule 2 4 . Hence, the first limb of the first argument of Mr. Poti cannot be companyntenanced. In so far as the second limb of the first companytention is companycerned, it was urged by Mr. Poti that the publication of the final list under Rule 2 4 was only a preliminary exercise and number a final one because the initial selection of localities under Rule 2 4 for opening new schools or upgrading existing schools requires further scrutiny and approval under Rule 9 and companysequently any order of sanction granted under Rule 2A 5 would leave the grantee only in the position of an applicant and number companyfer on him legitimate expectation rights. In support of his companytention Mr. Poti placed reliance on certain passages in Chingleput Bottlers Magestic Bottling. 11984 3 SCR 190 at 211 to 213 AIR 1982 SC 149 paras 14 to 17 State of Kerala v. A. Laxmi Kutti, 1986 4 SCC 632 at 654 and certain passages in Wade on Administrative Law pages 464, 465, 624 and 625. Looking at Rule 2 and the procedure enunciated therein for determining the areas where new schools are to be opened or existing schools are to be upgraded, we are unable to accept the companytention of Mr. Poti that the selection of areas where additional educational facilities are to be provided is only an informal and inconsequential exercise and as such the final list published by the Government carried numberforce with it till such time the further selection process under Rule 9 is gone through. The reason for our saying so is because Rule 2 prescribes an elaborate procedure and the due application of mind by several agencies before the final list of approved areas is published under Rule 2 4 . Rule 2 1 , enjoins the Director PG NO 110 to prepare a list of localities where new schools or upgraded schools are to be opened after taking into companysideration all the relevant factors viz. the existing schools in and around the locality, the strength of the several standards and the accommodation position in the existing schools, distance factors and the educational needs of the locality with reference to the habitation and backwardness of the area etc. Besides publishing the tentative list, the Director has to call for representations and objections from interested parties and they have to be duly companysidered by the Educational Officers of the locality and then by the Director himself and eventually the Government itself has to apply its mind to the selection of areas and then cause the final list to be published. The proviso to Rule 2 5 grants only limited powers of modification to the Government viz. to alter the list here and there and number to scrap it outright. Even the power of modification can be exercised only after giving the affected parties an opportunity to make representations against the proposed modification. The selection of approved areas becomes final once the list is published under Rule 2 4 , with or without modification and the finality is number companytingent upon further approval under Rule 9. What Rule 9 itself provides for is the grant of permission to applicants approved under Rule 2A 5 to open new schools depending upon the applicant subjectively satisfying the Government about his ownership or right to possession of the site, buildings and other needs of the school, his financial guarantee, has number being companyvicted of any offence involving moral terpitude and about the locality being in need of the new school and the accessibility of the new school to the members of the public. It is significant to point out that Rule 9 speaks of fulfilment of companyditions only for opening new schools and number for the upgrading of existing schools. Thus it may be seen that Rule 9 lays down subjective tests while Rule 2 prescribe objective as well as subjective standards in the matter of selecting areas which are in need of new schools or upgraded schools. It was also pleaded that the final list published under Rule 2 4 was vulnerable to cancellation at any time before new schools were actually opened in the selected areas in accordance with the Rules because of change of companyditions in the selected areas or because of the selected area losing their place of priority. This is too fragile a statement to merit acceptance because the need of a selected area, given recognition after an elaborate process of selection, cannot disappear overnight unless the need is fulfilled by the Government itself opening a new school or by the residents of the locality migrating on a large scale to another place. That the publication of the final list under Rule 2 4 PG NO 111 has number only binding force on the Government but it also entails companysequential obligations on the Government companyld be seen from the fact that Rule 2A 1 makes it imperative for the Director to call for applications from interested parties for opening new schools or upgrading existing schools in the selected areas. Mr. Poti argued that it was only to prevent a deluge of applications for opening new schools all over the States the selection of areas under Rule 2 is gone through so that the number of applications companyld be restricted. It is difficult for us to accept this statement because it runs companynter to the scheme of Rule 2 regarding the selection of areas on objective factors and subjective companysiderations. Be that as it may, the mandate companytained in Rule 2A 1 goes to show that the identification and selection of inadequately served areas under Rule 2 4 is number an idle or meaningless exercise. Such being the case the applications made under Rule 2A 1 cannot be treated as applications made by mere speculators or adventurers. On the companytrary the applications carry with them a certain amount of legitimacy in that they pertain to opening of schools in the inadequately served areas numberified by the Government and are made in response to the Directors numberification calling for applications. In fact Rule 12 companyfers a right of revision on those applicants whose applications for the opening of new upgraded schools are number included in the list of approved applicants published by the Government under Rule 2A 5 . Thus when even an unsuccessful applicant is companyferred a right to represent to Government against the number-approval of his application, can it be said that an approved applicant has numberright whatever to companyplain when the sanction granted to him is revoked all of a sudden without he being given any opportunity to show cause against such cancellation. It is significant to numbere that the Rules do number provide for the revocation or cancellation of a final list published under Rule 2A 5 and that the right of cancellation is given to the Government only if the approved applicant fails to satisfy the companyditions laid down in Rule 9 and thereby becomes disentitled to obtain sanction under Rule 11. The scheme of the Rules is such that after sanction is accorded to an applicant under Rule 2A 5 to open a new upgraded school, then the applicant acquires a right to have his application companysidered further under Rule 9 as regards his ownership or possession of land, buildings etc. his declaration of financial guarantee, the suitability of the place offered by him for location of the school and about he being free of any companyviction by any criminal companyrt so as to entitle him to the issue of an order under Rule 11. The further scrutiny of the application of the approved applicant under Rule 9 and the companyfirmation of approval under Rule 11 would number, however, mean that the earlier sanction granted under Rule 2A 5 does number create legitimate PG NO 112 expectation rights in the approved applicant. Mr. Poti companytended that an applicant obtaining sanction under Rule 2A 5 would only remain in the position of an applicant and it is only after further permission is granted under Rule 11, the applicant can be said to acquire legitimate expectation rights and the requisite locus to challenge any order of cancellation passed by the Government. In support of his argument Mr. Poti relied upon State of Kerala v. Laxmi Kutty, supra where the Court after referring to the ruling in Mani Subrat Jain v. State of Haryana, 1977 1 SCC 486 that a person whose name had been recommended for appointment as a District Judge by the High Court under Article 233 1 had numberlegal right to the post, held that unless there was a judicially enforceable right numberw t of mandamus for enforcement of a right would lie 2 Chinglepet Bottler v. Majestic Bottling, supra where the distinction drawn by Megarry V.C. in Mecinnes v. Onslow Fane and Anr., 19781 3 All. E.R. 211 between initial applications for grant of licence and the revocation, suspension or refusal to renew licence already granted was referred to and the Court observed that the principle that there was a duty to observe the audi alteram partem Rule may number apply to cases which relate number to rights or legal expectations but to mere privilege or licence 3 Wade on Administrative Law, Vth Edition, where difference between rights, liberties and expectations have been set out as under In many cases legal rights are affected, as where property is taken by companypulsory purchase or someone is dismissed from a public office. But in other cases the person affected may have numbermore than an interest. a liberty or an expectation. An applicant for a licence, though devoid of any legal right to it, is as a general rule, entitled to a fair hearing and to an opportunity to deal with any allegations against him. The holder of a licence who applies for its renewal is likewise entitled to be fairly heard before renewal can be refused. So also is a race goer before he can be put under a statutory ban against entering a public race companyrse. In numbere of these situations is there legal right, but they may, involve what the companyrts sometimes call legitimate expectation . This expression furnishes judges with a flexible criterion whereby they can reject unmeritorious or unsuitable claims. It was introduced in a case where alien students of scientology were refused extension of their PG NO 113 entry permits as an act of policy by the Home Secretary. The Court of Appeal held that they had numberlegitimate expectation of extension beyond the permitted time, and so numberright to a hearing, though revocation of their permits within that time would have been companytrary to legitimate expectation. Likewise where car-hire drivers had habitually offended against airport byelaws, with many companyvictions and unpaid fines, it was held that they had numberlegitimate expectation of being heard before being banned by the airport authority. There is some ambiguity in the dicta about legitimate expectation, which may apparently mean either expectation of a fair hearing or expectation of the licence or other benefit which is being sought. But the result is the same in either case absence of legitimate expectation will absolve the public authority from affording a hearing. For the purpose of natural justice the question which matters is number whether the claimant has some legal right but whether legal power is being exercised over him to his disadvantage. It is number a matter of property or of vested interests, but simply of the exercise of governmental power in a manner which is fair and companysiderate. The argument, therefore, was that the respondents had numberlocus standi to move the companyrt to seek the quashing of Ex. P-7 order and mandamus for their applications being approved and granted sanctioned under Rule 17. Refuting this companytention Dr. Chitale argued that the respondents were persons aggrieved and they had locus standi in the full sense of the term to move the companyrt since their right to open a school, though number claimed as a companystitutional right was a natural right and their suitability to open a school in the selected area having been accepted and their names included in the list published under Rule 2A S , the Government companyld number cancel the list. Dr. Chitale relied upon the decisions of this Court in Ebrahim Aboobakar and Anr. v. Custodian General of Evacuee Property, 1952 SCR 696 and S.P. Gupta v. Union of India, 1981 Supp. SCC 87. Arguments were also advanced by the appellants companynsel to companytend that any permission given under the Rule to run a school would only be a privilege while the respondents companynsel would say that it was a right within the meaning of Article 19 1 g of the Constitution. We do number think it necessary to go into this aspect of the matter because of the companytroversy narrowing down to the question whether after having granted sanction to the respondents under Rule 2A 5 PG NO 114 to open upgrade schools, subject to satisfying the companyditions under Rule 9 and obtaining clearance under Rule 11, the Government companyld go back on the matter and cancel the sanction order and that too without giving the respondents any hearing at all. In the companyrse of the arguments Mr. Poti laid stress upon the fact that while Rule 9 lays down several companyditions for being fulfilled before permission can be granted under Rule 11 to an educational agency to start a new school or upgrade a school, the order made under Rule 2A 5 makes mention of only one of the several companyditions being numbericed by the Government viz the provision of land for the proposed school and as such the order, despite the use of the word sanction can by numberstretch of imagination be companysidered as an order which companyferred rights upon the respondents and therefore it was futile for the respondents to say that legally enforceable recognition had been given to them to open schools in the selected areas. Going a step further Mr. Poti said that in many cases even the solitary factor numbericed by the Government viz the provision of land for the proposed school had number been adequately satisfied and this shortcoming has been referred to in the alleged sanction order passed under Rule 2A S . Going to the other end, Mr. Iyer and Dr. Chitale tried to take up the stand that the sanction order passed under Rule 2A 5 was virtually one under Rule 11 because the respondents had furnished information pertaining to all the companyditions enunciated in Rule 9 and therefore what remained for the Government was only to see whether the schools opened or upgraded by the respondents were entitled to grant of recognition under Rule 17 or number. We are unable to find merit in the last companytention of the respondents in this behalf because the Division Bench has clearly stated in para 52 of the judgment that the stage of the Govern ment giving directions for fulfilment of various companyditions has number been reached and therefore it was directing the State to proceed to take the further steps companymencing from Rule 11, Chapter V of the E.R. In view of this categoric finding and since it is the admitted position that the Government have number subjectively scrutinised the application of each of the respondents with reference to the companyditions enunciated in Rule 9, there is numberscope for the respondents to say that the sanction order made under Ex. P-4 was for all practical purposes an order made under Rule 11. Even so, we cannot accept the companytention of the State that the applications submitted by the respondents, despite their approval by the District Educational Officer, the Director and the Government and the publication of the sanction order under Rule 2A 5 remained only at the threshold and it was therefore open to the Government to revise its policy of PG NO 115 opening new schools or upgrading existing schools and throw overboard all the approved applications. We do number therefore feel persuaded to accept the first companytention of the appellants companynsel that the sanction order passed in favour of the respondents under Rule 2A 5 carried numberrights with them and that they would remain still-born orders till they passed through the third stage and were given acceptance under Rule 11. The second major companytention of the appellants companynsel, it may be recalled, was that the Government had number violated any statutory provision or the principles of natural justice when it passed the cancellation order Ex. P-7 revoking the earlier order Ex. P-4. To a large extent the arguments on this aspect of the matter overlapped the arguments advanced with reference to the first ground of attack already dealt with. It was once again argued that the identification and selection of poorly served areas in the matter of educational facilities under Rule 2 was only an administrative exercise in order to restrict the number of applications for opening new schools within manageable limits and that the real test of selection of the areas began only when the applications were processed under Rule It was likewise urged that though the Government was bound to implement the Directive Principles companytained in Article 41 of the Constitution in the matter of providing educational facilities, the obligation was subject to the limits of the economic capacity of the Government and as such the Government cannot be companypelled by any educational agency or even by the Court to open new schools unmindful of the financial burden that would be cast on the State by the opening of such schools. The last submission made in this behalf was that the revocation order passed under Ex. P-7 was number in pursuance of any adjudication of the rights of the applicants but to make known the revised policy of the Government which was taken after companysidering several relevant factors such as the inadequate resources of the applicants in providing lands, buildings, equipment, financial guarantee etc. for opening the proposed schools, the backlash on Governments finances due to the resultant surplusage of teachers that would occur in aided and government schools due to opening of more unaided schools etc. and therefore the respondents companyld neither companyplain of violation of the statute or the principles of natural justice when the Government passed the impugned order under Ex. P-7. It was pointed out by Mr. Poti that the Secretary to Government, Education Department had pointed out in January 1983 about the inadvisability of opening new schools and aboutt many of the applicants failing to satisfy most of the required companyditions for PG NO 116 opening new schools but in spite of it the Education Minister had acted in a cavalier manner in passing the order of sanction under Ex. P-4 and therefore the Government was well within its rights in witholding the order in the first instance and revoking it in toto subsequently. We are unable to see persuasive force in these companytentions because they do number take numberice of the realities of the situation. As we have already pointed out, the identification of inadequately served local areas in the matter of educational facilities and their selection process under Rule 2 cannot be companystrued as a meaningless and idle exercise. That apart, the final list of selected areas published under Rule 2 4 has number been revoked or cancelled by the Government. Though a fresh list of areas has to be prepared once in two years, that would number mean that the list can be rendered irrelevant due to numberimplementation. Such being the case the sanction order granted to the 91 applicants from among the total number of 122 applications has the support of the earlier Government order made under Rule 2 4 . It must, therefore, logically follow that the approved applicants are entitled to have their applications taken to the next stage for companysideration on more subjective factors so as to obtain permission under Rule 11 if they satisfied the requirements laid down by Rule 9. We have already pointed out that the Rules do number provide for the Government reviewing suo motu any order of sanction passed under Rule 2A 5 in favour of any applicant for opening of a new school or upgrading an existing school and its power of revision under Rule 12 is companyfined to the reconsideration of the case of any applicant whose name did number find a place in the final list of approved applications published by the Government. In so far as the argument that the Government cannot be companypelled by any educational agency or by the Court to incur additional financial burden by opening new schools, or new classes is companycerned, we have to point out that the argument in the present companytext has numberforce because all the applications that were approved pertained to the opening of unaided schools. Therefore, there is numberquestion of the Government being put to additional financial burden due to the opening of new schools in the selected areas. Moreover, the sanction order under Ex. P-4 specifically provided that the applicants for opening of the schools or upgradation of the schools shall give an undertaking as provided under numbere to Rule 11 Chapter V of the K.E.R. The undertaking referred to above is for ensuring that the approved applicant shall number move the Government at any time for the companyversion of the school into an aided school and clause b of Rule 11 further provides that if any application is made for companyversion into an aided school, the permission granted for opening of the school shall automatically lapse. Hence the argument that the Government will be saddled with additional financial burden by the opening of new unaided schools is a mis-conceived one. PG NO 117 It cannot be disputed that the applicants have to necessarily make arrangements for purchasing or taking on lease the required extent of land as well as making arrangements for the building and equipment that would be needed, for obtaining sanction from the Government even at the stage of making an application under Rule 2A 2 . The Government cannot, therefore, be heard to say that numberprejudice would occur to the respondents by reason of the cancellation order and that numberprinciples of natural justice would be voilated if the Government unilaterally revokes an order of sanction granted under Rule 2A 5 to the respondents for opening new schools or for upgrading existing schools. For all these reasons, we are unable to accept the second companytention of the appellants companynsel. We number pass on to the third companytention that even if there is numberprovision in the Rules for the Government cancelling the sanction order passed under Ex. P.4, the Government is always possessed of inherent powers of revocation under Section 20 of the Kerala General Clauses Act and hence the Division Bench was wrong in holding that the Government had numberjurisdiction to pass the impugned order Ex. P-7. In support of this argument, Mr. Poti referred to the decisions in M. P. State v. V. P. Sharma, 1966 3 SCR 557 at 570 and Lt. Governor v. Avinash Sharma 1971 1 SCR 413 at 416. Both the cases arose under the Land Acquisition Act and what was in issue before the Court was whether the Government companyld exercise powers only under Section 48 of the Land Acquisition Act to withdraw a numberification for acquisition made under Section 4 1 of the Act. In the first case, after the issue of a numberification under Section 4 1 , the Government issued successive numberifications under Section 6 of the Act companyering different portions of the land numberified for acquisition under Section 4 1 . The validity of the last of the numberifications under Section 6 was challenged on the ground that a numberification under Section 4 1 companyld be followed only by one numberification under Section 6 and that successive numberifications with respect to different parts of the land companyprised in one numberification under Section 4 1 cannot be made. The companytention was upheld by the High Court and also by this Court after over ruling the plea that once numberification was made under Section 4 1 , the Government PG NO 118 companyld issue successive numberifications under Section 6 as long as the numberification under Section 4 1 was number withdrawn by the Government in exercise of its powers under Section 48. In repelling this companytention, the Court incidentally observed that the argument that the only way in which the numberification under Section 4 1 can companye to an end is by withdrawal under Section 48 1 is number companyrect because under Section 21 of the General Clauses Act the power to issue a numberification includes the power to rescind it and therefore it is always open to the Government to rescind a numberification under Section 4 or under Section 6 and a withdrawal under Section 48 1 is number the only way in which a numberification under Section 4 or Section 6 can be brought to an end. In Lt. Governor v. Avinash Sharma, supra the Government caused a numberification under Section 4 of the Land Acquisition Act to be made on March 31, 1964 and followed the same by a companyposite numberification on May 16, 1964 under Section 6, 17 1 and 4 . Then the Collector served numberices under Section 9 in June 1964. Subsequently on October 5, 1965 the State Government published an order cancelling the earlier numberifications dated March 31, 1964 and May 16, 1964. The owner of the land challenged the cancellation order and sought a mandamus to direct the Government to proceed with the acquisition in accordance with law and determine the companypensation payable to him for companypulsory and urgent acquisition. It was companytended on behalf of the State that under Section 21 of the General Clauses Act the State had the power to cancel the numberification at any time and that Section 48 of the Land Acquisition Act did number trench upon that power. The companytention was rejected and the Writ Petition filed by the owner of the land was allowed. In the companyrse of the judgment it was observed as follows Power to cancel a numberification for companypulsory acquisition is, it is true, number affected by Section 48 of the Act. By a numberification under Section 21 of the General Clauses Act, the government may cancel or rescind the numberifications under Sections 4 and 6 of the Land Acquisition Act. The Court, however pointed out that The power under Section 21 of the General Clauses Act cannot be exercised after the land statutorily vested in the State Government. In another portion of the judgment it was observed that after possession has been taken pursuant to a numberification under Section 17 1 the land is vested in the Government and the numberification cannot be cancelled under Section 21 of the PG NO 119 General Clauses Act, number can the numberification be withdrawn in exercise of the powers under Section 48 and that any other view would enable the Government to circumvent the specific provision by relying upon a general power. Mr. Potis companytention was that till the permission was granted under Rule 11 for opening new schools or upgrading schools, the power of the Government under Section 20 of the Kerala General Clauses Act remained unaffected. We are unable to accept this argument because as pointed out by the Division Bench, the Act and the Rules do number provide for revocation of an order of sanction granted under Rule 2A 5 before taking the application to the third stage and evaluating it on subjective companysiderations as to whether permission should be granted under Rule 11 or number. In other words once the government approves an application for opening a new unaided school or a higher class in an existing unaided schools and passes an order under Rule 2A 5 , then the successful applicant acquires a right of legitimate expectation to have his application further companysidered under Rules 9 and 1 l for the issue of a sanction order under Rule 11 for opening a new school or upgrading an existing school. It is numberdoubt true, as pointed out by the Division Bench, that by the mere grant of an approval under Rule 2A 5 , an applicant will number acquire a right to open a new school or to upgrade an existing school but he certainly acquires a right enforceable in law to have his application taken to the next stage of companysideration under Rule l l. The Division Bench was, therefore, right in taking the view that the general power of rescindment available to the State Government under Section 20 of the Kerala General Clauses Act has to be determined in the light of the subject matter, companytext and the effect of the relevant provisions of the statute. For the aforesaid reasons the fourth companytention of Mr. Poti has also to fail. The last companytention of Mr. Poti was that the Division Bench of the High Court ought number to have issued writs under Article 226 of the Constitution for quashing the order under Ex. P-7 and issuing a mandamus to the Government to proceed with the approval-exercise and companysider the eligibility of the respondents for being granted permission under Rule 11 for opening new schools or upgrading existing schools in the selected areas. Various factors were adverted to in support of this plea. It was first of all stated that the respondents have numberenforceable right under law to open a school or to insist upon government according them sanction. Secondly, it was stated that many of the respondents were number possessed of adequate land or suitable buildings or PG NO 120 necessary equipment or financial resources etc. to open the schools. Thirdly, it was urged that the academic year 1986- 87 had almost companye to a close when the order under Ex. P-4 was issued and hence the order had practically become infructuous. Fourthly, it was stated that though there would be numberdirect expenditure for the State in the opening of unaided schools, the companysequential results would affect the finances of the State. It was said that as a result of the opening of new unaided schools or upgraded schools, the pupil strength and the division strength in the existing government and aided schools inevitably get reduced and this led to reduction in the teaching staff strength of those schools and the teachers thrown out of employment have to be given protection by the State by treating them as protected teachers and absorbing them in other government and aided schools as and when vacancies arose and it was in this manner the,States finances came to be affected. By this devious reasoning it was companytended that the State cannot be companypelled to incur additional expenditure in order to oblige the respondents opening new schools etc. We have given our careful companysideration to these submissions and find that they have numbermerit or substance. We have already set out step that though the respondents do number claim a fundamental right, since them base their claim under Article 30 1 , to open new schools, they do acquire a legal right under the Act and the Rules, after the Government finalises the list of approved applicants for opening new schools or upgrading existing schools in the selected areas. The Rules enjoin the Government to scrutinise the applications at various levels and then cause a list of the approved applications to be published. Any applicant whose name is number included in the approved list can file a revision to Government under Rule 12 and seek redressal of his grievance. Therefore it follows that if an application is approved and sanction is granted under Rule 2A 5 , the applicant acquires a justiciable right to have his application companysidered at the next level of determination under 9 and Rule 11. To take any other view of the matter would run companynter to the Rules in Chapter V and the legislative intent underlying them. In so far as many of the respondents number possessing the required extent of land or the type of building or the amount of finance etc. for opening a new school, it is always open to the Government when scrutinising the applications in the companytext of Rule 9, to refuse grant of permission to those applicants and reject their applications. By the judgment of the Division Bench, the right of the State Government to pass appropriate orders under Rules 9 and 11 have number been taken away. As regards the companytention that the sanction granted under Ex. P-4 on 4.2.87 was almost at the PG NO 121 close of the academic year and as such the order companyld number have been effectively implemented by the respondents even if the order had number been revoked, we have only to point out that the applications were made well in time but at the instance of some parties who moved the High Court, the Government was restrained from passing sanction orders and it was on account of that there was some delay. Even otherwise Rule 11 provides for the Government prescribing the date from which the school should start functioning. It is always therefore open to the Government to fix the date from which the school should start functioning and the Government is number left without power to exercise regulatory companytrol in such matters. The last of the reasons given viz. that by the opening of new aided schools, the teachers in the government and aided schools will be rendered surplus due to fall in the pupil strength or the division strength in the existing schools, it speaks rather poorly of the standards of education in Government and aided schools. Be that as it may, this cannot be a reason which can be advanced by the Government after it had gone half the way through the exercise of opening new schools in areas and localities where educational facilities are number adequate. It was urged that there are 16,000 schools in Kerala State and they themselves cast a heavy burden on the finances of the State and as such the State cannot afford to have more teachers thrown out of employment in Government and aided schools due to opening of new schools and pay them their salary till such time they are absorbed in regular vacancies in the existing schools. The argument fails to take numbere of the fact that all these factors were number new developments but were in existence even when the Government took steps under Rule 2 to identify the poorly served areas and then called for applications from interested parties for grant of permission to open new schools or to upgrade existing schools. If really the opening of new aided schools would result in an adverse effect upon the finances of the State, then the Government should find remedy for the situation by amending the Rules suitably so as to severely limit the scope for opening new unaided schools by putting more stringent companyditions. In fact, the Government have already proceeded in that direction and even number Rule 11 stipulates that any unaided school granted recognition should number seek companyversion into an aided institution and that if such companyversion is sought for, then the recognition granted earlier will automatically lapse. Over and above all these things, it is inconceiveable that by the opening of 1 unaided schools, new or upgraded, even assuming all of them are granted permission under Rule 11, the impact on the pupil strength of division strength the existing government and aided schools will be so great as to cause a large number of teachers being rendered surplus and the Government PG NO 122 being forced to incur heavy expenditure by treating them as protected teachers and paying them their salary. We are, therefore, in companyplete agreement with the Division Bench that these factors are undoubtedly extraneous ones and do number afford justification for the passing of the impugned order Ex. P-7 for revoking the earlier sanction order Ex. p-4. Hence the last companytention also fails. In the light of our reasoning and companyclusions, our answers for the three questions formulated by us are as under Though the sanction granted to the respondents under Ex. P-4 would number by itself entitle them to open new schools or upgrade the existing schools, it did companyfer on them a right to seek the companytinuance of the statutory procedural stream in order to have their applications companysidered under Rule 9 and dealt with under Rule 11 It was number open to the Government, either under the Act or Rules or under Section 20 of the Kerala General Clauses Act to cancel in toto the approval granted to the respondents under Rule 2A S , for opening new schools or upgrading existing schools in the selected areas on the basis of a revised policy. The impugned order under Ex. P-7, irrespective of the question whether the Government had the requisite power of cancel-lation or number, is vitiated by reason of number- observance of the principles of natural justice and the vice of extraneous factors. In the result, all the appeals fail and are accordingly dismissed. There will be numberorder as to companyts. However, even as the Division Bench has done, we make it clear that we are number making any pronouncement about the suitability or otherwise of the respondents to be granted permission under Rule 11 to open new schools or upgrade existing Schools. All that we hold is that the respondents are entitled, on the basis of the earlier order passed in their favour under Ex.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos.896 to 899 of 1988 and Civil Appeal No. 3352 of 1988. From the Judgment and Order dated 2.9.1987 of the Delhi High Court in C.W.P. No. 2131,2082 of 1984 respectively. PG NO 257 Ramaswami, Additional Solicitor General, R.K. Jain, P. Rao, M.S. Gujaral, S. Rangarajan, A.K. Sanghi, Mrs. Madhu Kapur, Arun Kr. Vijayesh Roy, Sanjay Kr. Kaul, Sardar Bahadur, V.B. Saharaya, R.K. Khanna, Vishnu Mathur, Ashok Aggarwal, R.N. Keswani and R.S. Sodhi for the appearing parties. The Judgment of the Court was delivered by VENKATACHALIAH, J. These four Civil Appeals by Special Leave and the Special Leave Petition arise out of and are directed against the companymon Judgment dated 2.9.1987, of the High Court of Delhi in C.W.P. No. 2132 and C.W.P. No. 2082 of 1984 in which the principal companytroversy was whether the Rules prescribing different companyditions of eligibility for Diploma-Holders and Graduates for promotion from the cadre of Junior-Engineers to that of Assistant-Engineers and from the cadre of Assistant-Engineers to that of Executive- Engineers in the Public Works Department of the Delhi Development Authority DDA is violative of Articles 14 and 16 of the Constitution and would, therefore, require to be declared void. The High Court, in the writ petitions filed by the Diploma-Holders, has held that such differential treatment of Diploma-Holders and Graduates by the prescription of different standards of service-experience for purposes of eligibility for promotion to the higher cadres is unconstitutional. The D.D.A. which is the appellant in Civil Appeals No.898 of 1988 and No. 899 of 1988 assails the companyrectness of the view taken by the High Court. Civil Appeals No. 896 of 1988 and 897 of 1988 are by the Graduate-Engineers who were respondents before the High Court and who are, similarly, aggrieved by the decision under appeal SLP 6181 of 1988 is by the DDA Graduate Engineers Association which seeks to espouse the cause of the Graduate-Engineers. We grant Special Leave in SLP. All the five appeals are heard and disposed of by this companymon judgment. PG NO 258 A.899 of 1988, C.A. 896 of 1988 and SLP 6181 arise out of C.W.P. 2132 of 1984. C.A. 898 of 1988, C.A. 897 of 1988 arise out of C.W.P. 2082 of 1984. The D.D.A. by its resolution No. 574 dated 13.11.1963 adopted, pro-tanto, the rules of the Central Public Works Department CPWD in regard to the mode of recruitment-both by direct recruitment and by promotion-to the posts of Asst. Engineers. The rules, so adopted, in substance, stipulate and provide that 50 of the posts be filled by direct recruitment or by deputation and that the other 50 be filled-up by promotion from the cadre of Junior-Engineers. The cadre of Junior-Engineers itself companyprises of both Graduates in Engineering and Diploma-Holders in Engineering. The two categories of officers in the cadre of Junior- Engineers were provided with promotional opportunities to the post of Asst. Engineers in the equal ratio 5050 of the promotional-posts. Half of it, i.e., 25 was to be filled up by promotion of Graduate-Engineers with three years service-experience as Junior-Engineers the other 25 to be filled-up from Diploma-Holder Junior-Engineers who were diploma holders who had 8 years service-experience as Junior-Engineers. By resolution No. 105 dated 16.6.1971 the DDA similarly adopted the relevant rules in the CPWD in the matter of recruitment to the posts of Executive-Engineers. The Executive-Engineers post in the DDA thus became purely promotional and Graduate Asst. Engineers with 8 years service-experience and diploma Asst. Engineers with 10 years service-experience were eligible for promotion. No inter-se quota between the two class of officers was prescribed. The following table delineates the effect and purport of the rules adopted under resolution No. 574 dated 13.11.1963 and No. 105 dated 16.6.1971. The table also indicates the mode of initial recruitment to the cadre of Junior- Engineers PG NO 259 EXECUTIVE ENGINEERS By promotion Asst. Engrs. Asst. Engrs. Degree Diploma 8 years 10 years service service ASSISTANT ENGINEERS Graduates and Dimploma holders 50by promotion 50.By Direct recruitment 25 25 Jr. Enger. Jr.Engr. Degree Diploma 3 yrs. 8 years service service JUNIOR ENGINEERS Sectional Officers Direct recruitment Graduates in Diploma- Engineering holders No prior with 2 experience years Prescribed experience In the years 1984 the Diploma-Holder in the cadre of Junior-Engineers and in he cadre of Asst. Engineers sought to assail, by means of two writ-petitions presented to the Delhi High Court, the Constitutional validity of the prescriptions made by the rules in the matter of requirement of differential service-experiences between the Graduates and Diploma-Holders for promotion to the higher cadres viz. of Asst. Engineers and Executive-Engineers respectively. They also assailed the promotions of Graduate-Engineers to the higher cadres made on the strength of the Rules. CWP. 2132 of 1984 pertained to the resolution No. 574 dated 13.11.1963 adopting the relevant CPWD Rules prescribing 3 years and 8 years service-experience for Graduates and Diploma-Holders respectively and the discrimination thus brought about between them. CWP No. 2082 of 1984 pertained to the companytitutionality of the analogous provisions in the rules adopted by resolution No. 105 dated 16.6.1971. PG NO 260 The High Court heard these two petitions together and by its companymon judgment dated 2.9.1987 upheld the challenge and declared the different standards of service-experience prescribed for Degree-Holders and Diploma-Holders in respect of both the cadres as violative of Articles 14 and 16 of the Constitution. The principal question that arises in these appeals is whether, where, as here, recruitment to a particular cadre of posts is made, from two different sources, different companyditions, based on the differences in educational qualifications, can be prescribed companyditioning the eligibility for further-promotion to a higher cadre in service. The High Court, by the judgment number under appeal, has held that such prescription of differential standards-based even on the differences in technical, educational qualifications-is violative of Article 14 and 16 of the Constitution. In reaching such companyclusions as it did on the point, the High Court placed reliance on the pronouncement of this Court in Mohammad Shujat Ali v. UOI and Others,1975 1 SCR 449, H. C. Sharma and Ors. v. Municipal Corporation of Delhi and Ors., 1983 3 SCR 372 and Punjab State Electricity Board,Patiala, and Anr. v. Ravinder Kumar Sharma Ors.,1986 4 SCC 617 and T.R Kapur and Others v. State of Haryana and Others, AIR 1987 SC 415. The High Court distinguished the decision of this Court in State of Jammu Kashmir v. Triloki Nath Khosa Ors., l1974 1 SCR 771. The High Court drew a distinction between the situation where diploma-holders were wholly excluded from eligibility for promotion to the higher cadre and the situation where, while they were companysidered eligible for promotion, however, were subjected to more onerous and less advantageous companyditions for such promotion. The High Court distinguished Triloki Nath Khosas case observing This was a case where diploma holders were found companypletely ineligible for promotion to the higher post for lack of essential educational qualification but the companysiderations may vary if they are found eligible for promotion to the higher post but still certain companyditions are laid as distinct from degree holders before they become eligible for promotion. The question then would arise whether such distinction can be justified and is based on any rationality or number PG NO 261 Answering this point in favour of the Diploma-Holders the High Court held The moment the diploma holders and degree holders are companysidered to companystitute one class for purposes of promotion there cannot be any differentiation between the two vis-a- vis the qualification for promotion. It companyld be that for reasons of efficiency in administration the authorities may lay down that diploma holders are number at all eligible for promotion to the higher post and such a bar can be upheld in view of the ratio laid down in the case of Triloki Nath Khosa but after the authorities companysidered them eligible for promotion there companyld be numberrationale in their making any distinction between the degree-holders and diploma-holders for granting promotion to them to the higher post Emphasis Supplied The point of distinction, as apprehended by the High Court, is that in the present case a Diploma, ipso-facto, qualifies for promotion. The real question is whether this assumption is companyrect and whether the relevant Rules determine the eligibility for promotion on the basis of a Diploma, or for that matter even a Degree, Or whether the eligibility for promotion is determined number with reference merely to the educational attainments but on the basis of educational qualifications plus a measure of service- experience, stipulated differently for Graduates and Diploma-Holders. Learned companynsel for the appellants, companytended that the view that companymended itself to the High Court is demonstrably erroneous and is opposed to principles which, by number, should be companysidered well-settled. They submitted that the High Court fell into an obvious error in its view that in Shujat Alis case 1975 1 SCR 449, this Court had stuck down the service-rule impugned in that case. Learned Counsel submitted that the fundamental distinction between the two sets of cases, one of which Triloki Nath Khosas case is represents, and the other typified by Shujat Alis case, was lost sight of by the High Court and the error pervading the judgment is the result of overlooking this essential distinction between the two sets of cases. It was companytended for the appellants that the present case was number one in which the Diploma-Holders proprio- vigore, and without more, were held eligible for promotion. If the effect and intent of the rules were such as to treat PG NO 262 Diploma as equivalent to a Degree for purposes of further promotion then, the view of the High Court-that having companysidered both class of officers equally eligible for promotion on the mere strength of their educational qualifications, any further discrimination brought about by subjecting the Diploma-Holders alone to a more onerous and less advantageous stipulation for such promotion would violate, the companystitutional pledge of equality-might have some qualification. But in the present case, companynsel companytended, that is number the position. The educational qualification of a Diploma in engineering was number treated as equivalent to a Degree for purposes of determining eligibility. Nor the Degree itself was determinative of eligibility for promotion. The eligibility for promotion is, it is urged, based on a companybination of factors which vary according as the basic educational qualification of the two classes of engineers that this distinction was germane to the requirements of higher technical and academic quality for the higher posts which involved expertise in structural- design etc. Learned companynsel submitted that even where recruitment to a particular cadre was made from different sources, resulting in the formation of single a homogeneous cadre, it was number impermissible to make a further classification amongst the members of such a cadre for purposes of further promotion based on the higher educational qualification of the candidates. Learned companynsel for the respondent-diploma-holders, while seeking to support the judgment of the High Court urged that this Court had, more than once, cautioned against undue accent, in the matter of promotional opportunities, on academic qualification alone which might lead to elitist preferences and tend to obscure the egalitarian principle and social-justice. It was, therefore, companytended that the effect of the distinction, in the ultimate analysis, is really an imperceptible extension or magnification of insubstantial factors sub-verting the precious guarantee of equality. Sri Gujral, learned Senior Counsel, sought to impart to the situation a dimension of social-justice and made an impassioned plea that to discriminate between Diploma-Holders and Graduates who belong to the same cadre and hold inter-changeable posts, both in the present-cadre and in the prospective promotional posts, on the mere lack of some higher academic attainment is to place a high premium on those social and economic ills of the society which rendered the further academic pursuits for the economically disadvantaged difficult. A large number of authorities were cited on either side. We by first examine the cases relied upon by the High Court in support of its companyclusion. The inherent distinction PG NO 263 between a person with a Degree and one who is merely a Diploma-Holder is much too obvious. But the question that falls for companysideration, in the companytext such as the present one, is whether the differences have a reasonable relation to the nature of the office to which the promotion is companytemplated. The idea of equality in the matter of promotion can be predicated only when the candidates for promotion are drawn from the same source. If the differences in the qualification has a reasonable relation to the nature of duties and responsibilities, that go with and are attendant upon the promotional-post, the more advantageous treatment of those who possess higher technical qualifications can be legitimised on the doctrine of classification. There may, companyceivably, be cases where the differences in the educational qualifications may number be sufficient to give any preferential treatment to one class of candidates as against another. Whether the classification is reasonable or number must, therefore, necessarily depend upon facts of each case and the circumstances obtaining at the relevant time. When the state makes a classification between two sources, unless the vice of the classification is writ large on the face of it, the person assailing the classification must show that it is unreasonable and violative of Article 14. A wooden equality as between all classes of employees irrespective of all distinctions or qualifications, or job-requirements is neither companystitutionally companypelled number practically meaningful. This Court in Central Railway v.A.V.R. Siddhanti, 1974 3 SCR 207 at 214 observed A wooden equality as between all classes of employees regardless of qualifications, kind of jobs, nature of responsibility and performance of the employees is number intended, number is it practicable if the administration is to run. Indeed, the maintenance of such a classless and undiscerning equality where, in reality, glaring inequalities and intelligible differentia exist, will deprive the guarantee of its practical companytent. Broad classification based on reason, executive pragmatism and experience having a direct relation with the achievement of efficiency in administration, is permissible In T. Devadasan v. The Union of India,19644 SCR 680 at 689 690 this Court observed What is meant by equality in this Article is, equality amongst equals. It does number provide for an absolute equality of treatment to all persons in utter disregard PG NO 264 in every companyceivable circumstance of the differences such as age, sex, education and so on and so forth as may be found amongst people in general. Indeed, while the aim of this Article is to ensure that invidious distinction or arbitrary discrimination shall number be made by the State between a citizen and a citizen who answer the same description and the differences which may obtain between them are of numberrelevance for the purpose of applying a particular law reasonable classification is permissible. It does number mean anything more. But then the process of classification is in itself productive of inequality and in that sense antithetical of equality. The process would be companystitutionally valid if it recognises a pre-existing inequality and acts in aid of amelioration of the effects of such pre-existent inequality. But the process cannot in itself generate or aggravate the inequality. The process cannot merely blow-up or magnify in- substantial or microscopic differences on merely meretricious or plausible dif-ferences. The over-emphasis on the doctrine of classification or any anxious and sustained attempts to discover some basis for classification may gradually and imperceptibly deprive the article of its precious companytent and end in replacing Doctrine of equality by the doctrine of classification. The presumption of good faith in and of companystitutionality of a classification cannot be pushed to the point of predicating some possible or hypothetical but undisclosed and unknown reason for a classification rendering the precious guarantee of equality a mere rope of sand. To overdo classification is to undo equality. The idea of similarity or dissimilarity of situations of persons, to justify classification, cannot rest on merely differentia which may, by themselves be rational or logical, but depends on whether the differences are relevant to the goals sought to be reached by the law which seeks to classify. The justification of the classification must needs, therefore, to be sought beyond the classification. All marks of distinction do number necessarily justify classification irrespective of the relevance or nexus to objects sought to be achieved by the law imposing the classification. In Mohd. Sujat Alis case the validity of a prescription of the rules of the State of Andhra Pradesh treating Graduate-Engineers, on the one hand, and engineers with diploma or equivalent qualification, on the other, differently for purposes of promotion arose for companysideration. Strictly speaking, the High Court was number right in its under-standing of the actual result of the PG NO 265 ease. The High Court, in para 8 of the judgment observed The Supreme Court had then struck down this rule as violative of fundamental rights enshrined in Articles 14 and 16 of the Constitution of India But it is to be numbericed that the writ-petitions were ultimately dismissed by this Court. There are, of companyrse, certain observations which caution against too readily resorting to the expedience of classification. After referring to Triloki Nath Khosas ease it was observed But from these decisions it cannot be laid down as an invariable rule that whenever any classification is made on the basis of variant educational qualification., such classification must be held to be valid irrespective of the nature and purpose of the classification or the quality and extent of the differences in the educational qualifications. It must be remembered that life has relations number capable always of division into inflexible companypartments. The moulds expand and shrink. The test of reasonable classification has to be applied in each ease on its peculiar facts and circumstances Emphasis Supplied This echoes what Vivian Bose, J. had earlier said in Bidi ,Supply Co. v. Union of lndia 1956 SCR 182 Article 14 sets out, to my mind, an attitude of mind,a way of life. rather than a precise rule of law In a given case that it falls this side of the line or that and because of that decisions on the same point will vary as companyditions vary, one companyclusion in one part of the companyntry and another somewhere else one decision today and another tomorrow when the basis of society has altered and the structure of current social thinking is different. It is number the law that alters but the changing companyditions of the times and Article t4 narrows down to a question of fact which must be determined by the highest Judges in the land as each ease arises Shujat Alis ease itself recognised the permissibility and validity of such classification if the nature of the PG NO 266 functions and duties attached to the promotional-posts are such as to justify the classification in the interest of efficiency in public service but, where both graduates and number-graduates were regarded as equally fit and eligible for promotion,the denial of promotion to a person otherwise eligible and due for promotion on the basis of a quota was number justified. On this point it was observed by this Court in Shujat Alis case But where graduates and number-graduates are both regarded as fit and, therefore, eligible for promotion,it is difficult to see how, companysistently, with the claim for equal opportunity, any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to graduates over number-graduates in the matter of fixation of such quota. The result of fixation of quota of promotion for each of the two categories of supervisors would be that when a vacancy, arises in the post of Asst. Engineer, which, according to the quota is reserved for graduate supervisors, a number-graduate supervisor cannot be promoted to that vacancy, even if he is senior to all other graduate supervisors and more suitable than they. His opportunity for promotion would be limited only to vacancies available for number-graduate supervisors. That would clearly amount to denial of equal opportunity to him In the present appeals before us, the Graduates and Diploma-Holders were number treated equal in the mattes of eligibility for promotion. What is, therefore, assailed is number the aspect of the mere fixation of a quota as between the Diploma-Holders and the Graduates in the promotional posts, but the very prescription of different standards or companyditions of eligibility. In Shujat Alis case the infirmity of the differential treatment stemmed from the fundamental basis that, at that point, both Graduates and Diploma-holders were equally eligible but the Rule operated to deny promotion to a Diploma-holder on the basis of a quota. The observations in that case pertained to a stage which arose after the equality of eligibility for promotion between the two classes of persons had been recognised. But in the present appeals the different prescriptions for companyditioning eligibility are themselves questioned which need to be decided on the basis whether the discrimination companytemplated and brought about in the matter of promotional- opportunities between graduates and number-graduates, based on the differences in the quality of their technical qualifications, were relatable to, and justified on the PG NO 267 basis of, the requirements of the promotional-posts. It is relevant to mention here that the different standards and Conditions for eligibility were prescribed with a view to injecting a higher technical quality in the promotions-cadre based on the recommendations of a companymittee, called Vaish- Committee, companystituted for the purpose. C. Sharmas and Punjab State Electricity Boards cases were also matters where Graduates and Diploma-holders were merged into and formed part of a homogenious cadre with equal eligibility for promotion and what fell for companysideration was the validity of the further prescription of quotas between them. Here-again, numberquestion of the validity of the different standards prescribed for the very eligibility for promotion fell for companysideration. The present cases, however, are those where, havig regard to the requirements of the promotional-posts, different companyditions of eligibility for promotion on the differences based on the educational qualifications and service-experience were prescribed. In State of Mysore v. Narasinga Rao,1968 1 SCR 40 1 higher educational qualifications were companysidered relevant for fixation of higher pay-scales. In Union of India v. Mrs. B. Kohli,1973 3 SCR 117 the requirement of a post graduate specialisation in the particular discipline was companysidered number irrelevant and a classification based on such specialisation was upheld. Triloki Nath Khosas case is more directly in point. There, Graduate-Engineers and Diploma-Holders were in a companymon-cadre of Asst. Engineers. But for purposes of further promotion to the higher cadre of Executive-Engineers only the Graduate were held eligible. Diploma-Holders were barred for promotion. Repelling the challenge to this provision made by the Diploma Holders, this Court said The classification of Assistant Engineers into Degree- holders and Diploma-holders companyld number be held to rest on any unreal or unreasonable basis. The classification was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly companyrelated to it for higher educational qualifications are at least presumption evidence of a higher mental equipment. Classification on the basis of educational qualifictions made with a view to achieving administrative PG NO 268 efficiency cannot be said to rest on any fortuitous circumstances and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. Though persons appointed directly and by promotion were integrated into a companymon class of Assistant Engineers, they companyld, for purposes of promotion to then cadre of Executive Engineers, be classified on the basis of educational qualifications the rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does number violate Articles 14 and 16 of the Constitution and must be upheld. Emphasis Supplied In Triloki Naths case diploma-holders were number companysidered eligible for promotion to the higher post. Here, in the present case, the possession of a diploma, by itself and without more, does number companyfer eligibility. Diploma, for purposes of promotion, is number companysidered equivalent to the degree. This is the point of distinction in the situations in the two cases. If Diploma-Holders-of companyrse on the justification of the job-requirements and in the interest of maintaining a certain quality of technical expertise in the cadre-could validly be excluded from the eligibility for promotion to the higher cadre, it does number necessarily follow as an inevitable companyollary that the choice of the recruitment policy is limited only two choices, namely either to companysider them eligible or number eligible. State, companysistent with the requirements of the promotional-posts and in the interest of the efficiency of the service, is number precluded from companyferring eligibility on Diploma-Holders companyditioning it by other requirements which may, as here, include certain quantum of service-experience. In the present case, eligibility-determination was made by a cumulative-criterion of a certain educational qualification plus a particular quantum of service experience. It cannot, in our opinion, be said, as postulated by the High Court, that the choice of the State was either to recognise Diploma-Holders as eligible for promotion or wholly exclude them as number-eligible. If the educational qualification by itself was recognised as companyferring eligibility for promotion, then, the super-imposition of further companyditions such as a particular period of service, selectively, on the Diploma-Holders alone to their disadvantage might become discriminatory. This does number prevent the State from formulating a policy which prescribes as an essential part of the companyditions for the vary eligibility that the candidate must have a particular qualification plus a stipulated quantum of service- PG NO 269 experience. It is stated that on the basis of the Vaish- Committee report, the authorities companysidered the infusion of higher academic and technical quality in the personnel requirements in the relevant cadres of Engineering Services necessary. These are essentially matters of policy. Unless the provision is shown to be arbitrary, capricious, or to bring about grossly unfair results, judicial policy should be one of judicial- restraint. The prescriptions may be somewhat cumbersome or produce some hardship in their application in some individual cases but they can number be struck down as unreasonable, capricious or arbitrary. The High Court, in our opinion, was number justified in striking down the Rules as violative of Articles 14 and 16. Accordingly, all the Appeals are allowed, the Judgment of the High Court dated 2.9.1987 set-aside and the Civil Writ Petitions No. 2 132 of 1984 and 2082 of 1984 in the High Court dismissed. However, the parties are left to bear and pay their companyts, both here and below.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 480 of 1988. From the Judgment and Order dated 23/24.7.1987 of the Bombay High Court in Crl. W.P. No. 356/1987. Dr. Y.S. Chitale, A.M. Khanwilkar ad A.S. Bhasme for the Appellants. R. Lalit, V.N. Ganpule and S.K. Angihotri for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. Leave granted. Being more companycerned with the law adumerated by the High Court of Bombay rather than with the quashing of the order of detention passed against a detenu by name Bhadresh Mafatlal Shah, son of respondent No. 1 herein, under Section 3 1 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 hereinafter called the COFEPOSA Act the State of Maharashtra has filed this appeal by special leave against the order of the High Court in Crl. Writ Petition No. 356 of 1987. The High Court has quashed the order of detention on the ground that Shri D.N. Capoor, Officer on Special Duty and Ex-officio Secretary to the Government of Maharashtra, Home Department hereinafter referred to as D . N .Capoor only who had passed the order of detention had only companymunicated to the detenu that he had a right to make a representation to the State Government as also to the Government of India against the order of detention and had failed to companymunicate that he had also a right to make a representation to the Detaining Authority him-self the companystitutional safeguards and imperatives under Article 22 5 had been violated in as much as the detenu had been deprived of his right to make a representation to the Detaining Authority himself before availing of his right to make further representation to the State Government and the Central Government. The principal challenge in this appeal is to the proposition of law enunciated by the High Court. We may number have a look at the facts. On 21.8.86 the detenu was caught in the act of transporting ten gold biscuits of foreign origin. On 23.10.86 the Collector of Central Excise and Customs sent a proposal to the State Government for action being taken against the detenu under PG NO 831 the COFEPOSA Act and on 17.11.86 he furnished, in response to Governments query, some additional information about the detenu. On 2.2.87 an order of detention under Section 3 1 of the COFEPOSA Act was passed by D.N. Capoor in exercise of the powers specially companyferred upon him by the Government of Maharashtra for the purpose of Section 3 of the Act. In the grounds of detention the detenu was informed that he had a right to make a representation to the State Government as also to the Government of India against the order of detention. On 15.2.87 the order of detention as well as the grounds of detention were served on the detenu. On 14.3.87 the detenu preferred a representation addressed to D.N. Capoor and it was forwarded by the Superintendent, Central Prison, Nasik with a companyering letter dated 17.3.87 to the Government. The Government after calling for remarks from the Assistant Collector of Customs and Central Excise, Pune rejected the representation of the detenu by order dated 3.4.87 and the said order was companymunicated to the detenu on 4.4.87 through the Superintendent of the Central Prison, Nasik. In the meanwhile on 12.3.87 the case of the detenu was referred to the Advisory Board. On 8.5.87 the Advisory Board companysidered the detenus case and sent a report justifying the detention and thereafter the State Government companyfirmed the detenus detention. In the month of March, 1987 the first respondent being the Detenus mother, filed a petition under Article 226 of the Constitution before the High Court of Bombay for a writ being issued for the order of detention being quashed. Though several grounds were set out in the writ petition, they were all given up and the companynsel appearing on behalf of the detenu companyfined the challenge to the validity of the detention order on one ground alone. The ground of attack was to the following effect as the order of detention had been passed by D.N.Capoor in his capacity as a person specially empowered by the Government of Maharashtra to issue the order of detention under Section 3 1 of the COFEPOSA Act, the detenu had a right to make a representation to him in the first instance and only thereafter to make representation to the State Government or to the Central Government if need be. In the grounds of detention the detenu had only been informed that he had a right to make a representation to the State PG NO 832 Government as also to the Government of India against the order of detention, but he had number been companymunicated that he had also a right to make a representation to the Detaining Authority i.e. D.N. Capoor him-self. Failure to numberify the detenu of his right to make a representation to the Detaining Authority violated the companystitutional provisions of Article 22 5 inasmuch as the detenu had been deprived of his right to make a second representation to the State Government in the event of the Detaining Authority D.N. Capoor rejecting his representation. This companytention found acceptance with the High Court and the High Court made the Rule absolute and quashed the order of detention. The challenge in this appeal is number only to the release of the detenu but to the principle of law formulated by the High Court to set aside the order of detention. Before proceeding further we may state for purposes of record, that an attempt was made by the State before the High Court that D.N. Capoor had number passed the order of detention solely in exercise of his powers as a specially empowered officer of the State to make an order under Section 3 1 but also as an officer authorised to act On behalf of the Government under the Standing Rules framed under the Rules of Business of the Government of Maharashtra. The High Court declined to accept this companytention as there was numberproof that D.N. Capoor had been empowered under the Standing Rules to act on behalf of the Government and furthermore the Central Government companynsel had also companyceded that numbersuch authorisation had been made in favour of D.N. Capoor under the Rules of Business. No attempt was made before us to dispute this finding of the High Court and therefore the settled position is that the detention order had been passed by D.N. Capoor solely in his capacity as an officer specially empowered by the Government to exercise powers under Section 3 1 of the COFEPOSA Act and number as one empowered to act on behalf of the Government under the Rules of Business. Therefore what falls for companysideration in the appeal is whether by reason of D.N. Capoor having passed the order of detention only in exercise of his special empowerment to act under Section 3 1 of the Act and number in exercise of any right given to him under the Rules of Business of the Government, he was under a companystitutional obligation to companymunicate to and afford opportunity to the detenu to make a representation to himself in the first instance before the detenu availed of his right to make representations to the State Government PG NO 833 and the Central Government. It was urged by Dr. Chitale on behalf of the State, that neither Article 22 5 of the Constitution number the provisions of the COFEPOSA Act afford scope for any differentiation being made between an order of detention passed by a specially empowered officer of the State Government or the Central Government as the case may be, and an order of detention passed by the State Government or the Central Government itself, as the case may be, and for holding that if an order of detention falls under the former category, the Constitution obligates a different kind of procedure to be followed in the matter of affording opportunity to the detenu to make his representations against the order of detention. He also stated that the theory that a detenu had a right to have his representation companysidered by the very same officer who had passed the order of detention has been exploded in Kavita v. Maharashtra, 1982 1 SCR 138 Smt. Masuma v. State of Maharashtra Anr., 1982 1 SCR 288 and therefore the High Court was number right in holding that the detenu had such a right. He also urged that if the view taken by the High Court was number companyrected it would lend to several anomalies and even to the defeasance of the COFEPOSA Act itself in certain situations. Refuting Dr. Chitales companytentions, Mr. U.R. Lalit, learned companynsel appearing for the detenu stated that unlike in other Preventive Detention Acts such as the National Security Act. etc., there is numberprovision in the COFEPOSA Act for companyfirmation by the Government of an order of detention passed by an officer specially empowered under Section 3 1 of the COFEPOSA Act and as such the officer issuing an order of detention under the Act companystitutes the Detaining Authority of the detenu and hence the Detaining Authority is under an obligation to afford opportunity to the detenu to make a representation to himself in the first instance before the detenu avails of his right to make representation to the State Government and then to the Central Government. Mr. Lalit relied upon the decisions of this Court in Santosh Anand v. Union of India, 1981 2 SCC 420 and Pushpa v. Union of India, 1980 suppl. scc 391 for sustaining the judgment of the High Court. Yet another argument of Mr. Lalit was that since Article 22 5 mandates the affording of opportunity at the earliest point of time to the detenu to make his representation, it must be interpretatively companystrued that the Detaining Authority is under an obligation to inform the detenu and afford him opportunity to make a representation to the very Authority companycerned and failure to give such an opportunity would PG NO 834 amount to a denial to the detenu of his companystitutional rights. We shall number examine the divergent companytentions advanced before us in greater detail. The questions that fall for companysideration may broadly be enunciated as under. Does an order passed by an officer of the State Government or the Central Government, specially empowered for the purposes of Section 3 1 by the respective Government, make him the Detaining Authority and number the State Government or the Central Government as the case may be, and obligate him to inform the detenu that he has a three fold opportunity to make his representations i.e. the first to himself and the other two to the State Government and the Central Government. Whether for the purposes of the Act, there is any difference between an order of detention passed by an officer of the State Government or the Central Government, solely in exercise of the powers companyferred on him under Section 3 by the respective Government and an order of detention passed by the State Government or the Central Government as the case may be through an officer who in addition to companyferment of powers under Section 3 is also empowered under the Standing Rules framed under the Rules of Business of the Government, to act on behalf of the Government Whether by reason of the fact that an order of detention is passed by an officer of the State Government or the Central Government specially empowered to act under Section 3 of the Act, a detenu acquires a companystitutional right to have his representation first companysidered by the very officer issuing the detention order before making a representation to the State Government and the Central Government. The Constitution, while recognising the necessity of laws to provide for preventive detention, has also prescribed the safeguards which should be observed for detaining persons without trial under laws enacted for placing persons under preventive detention. Article 22 sets out the imperatives that should be observed, but for our purpose, it is enough if Clause S of the Article is alone extracted. It is in the following terms. 22 5 . When any person is detained in pursuance of an order made under any law providing for preventive detention PG NO 835 the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Article 22 5 has been companystrued as under in Abdul Karim v. Bengal, 1969 3 SCR 479 at page 486. A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22 5 does number expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Art. 22 5 that the State Government to whom the representation is made should properly companysider the representation as expeditiously as possible. The Constitution of an Advisory Board under Section 8 of the Act does number relieve the State Government from the legal obligation to companysider the representation of the detenu as soon as it is received by it. On behalf of the respondent it was said that there was numberexpress language in Art. 22 5 requiring the State Government to companysider the representation of the detenu. But it is a necessary implication of the language of Art. 22 5 that the State Government should companysider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the companystitutional right to make a representation guaranteed by Art. 2 5 must be taken to include by necessary implication the companystitutional right to a proper companysideration of the representation by the authority to whom it is made. Vide also John Martin v. State of West Bengal, 1975 3 SCC 836 at 839 Jayanarayan Sukul v. State of W.B., 1970 3 SCR 225 and Haradhan Saha v. State of W. B., 1975 3 SCC 198. We can, therefore, companyclude without further discussion that on the plain language of Article 22 5 that Article 22 5 does number provide material for the detenu to companytend that in addition to his right to make a representation to the State Government and the Central Government, he has a further right under Article 22 5 to make a representation PG NO 836 to D.N. Capoor himself as he had made the order of detention. Turning number to the COFEPOSA Act, the relevant provisions to be numbericed are Sections 2, 3, 8 and 11. In Section 2 which is the definition section, the words appropriate government and detention order have been defined as under Section 2. a appropriate Government means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government or a person detained under such order, the State Government b detention order means an order made under section 3. Section 3 is the Section which companyfers powers on the Central Government and the State Government to make an order, either by itself or through one of its officers having the prescribed rank and specially empowered for the purpose of the section by the Government to which he belongs for detaining a person under preventive custody without trial. The section reads as follows Section 3 . 1 The Central Government or the State Government or any officer of the Central Government, number below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, number below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person including a foreigner , that with a view to preventing him from acting in any manner prejudicial to the companyservation or augmentation of foreign exchange or with a view to preventing him from-- smuggling goods. or abetting the smuggling of goods, or engaging in transporting or companycealing or keeping smuggled goods, or PG NO 837 dealing in smuggled goods otherwise than by engaging in transporting or companycealing or keeping smuggled goods, or harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained. When any order of detention is made by a State Government or by an officer empowerd by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. For the purposes of clause 5 of article 22 of the Constitution, the companymunication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily number later than five days, and in exceptional circumstances and for reasons to be recorded in writing, number later than fifteen days, from the date of detention. Section 8, which has been enacted to companyply with the companystitutional imperative in Article 22 4 enjoins the Central Government and the State Government to companystitute one or more Advisory Boards and obligates the companycerned government to refer to the Advisory Board the case of every detenu ordered to be detained by the said government within a period of five weeks from the date of detention. For our purposes it would suffice if clause b of section 8 alone is quoted. The clause reads as follows Section 8 b --Save as otherwise provided in Section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board companystituted under clause a to enable the Advisory Board to make the report under sub-clause a of clause 4 of Article 22 of the Constitution. section 11 which is the last of the section requiring PG NO 838 numberice per tains to the powers of revocation of the State Government or the Central Government as the case may be. The relevant is in the following terms Section 11 1 --Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified-- Notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government Notwithstanding that the order has been made by an officer of the Central Government or by a State Government. by the Central Government. 2 omitted On a reading of the abovesaid provisions, it may be seen that the power to detain a person under the Act has numberonly been companyferred on the Central Government and the State Government but provision had also been made for the Central Government and the State Government to specially empower any of its officers holding the minimum prescribed rank to pass an order of detention under Section 3 1 . We may number examine the scheme of the Act and have a closer look at the provisions set out above to find out whether the Act provides for a differentiation being made between detention orders made by the Government and those made by specially empowered officers so as to companyfer an additional right of representation to detenus subjected to detention under detention orders falling in the latter category. At the outset, it needs numbersaying, that in Government be it Central or State, has to function only through human agencies, viz. its officers and functionaries and that it cannot function by itself as ar. abstract body. Such being the case, even though Section 3 1 provides for an order of detention being made either by the Central Government or one of its officers or the State Government or by one of its officers, an order of detention has necessarily to be made in either of the situations only by an officer of the companycerned Government. It is in acceptance of this position we have to see whether an order of detention, if passed by an officer of the Government specially empowered under Section 3 1 but number further empowered under the Rules of of the Government to act would PG NO 839 have the effect of making the companycerned officer the Detaining Authority and number the companycerned Government itself. The answer to the question has to be necessarily in the negative for the following reasons. It has been specifically provided in Section 2 a that irrespective of whether an order of detention is made by the Central Government or one of its duly authorised officers, the apropriate Government as regard the detention order and the detenu will be the Central Government only and likewise whether an order of detention is made by a State Government or one of its duly authorised officers the appropriate Government would be the State Government only as regards the detention order and the detenu companycerned. Secondly, irrespective of whether an order of detention is made by the State Government or by one of its officers, the obligation to forward, within ten days a report to the Central Government in respect of the order is cast only upon the State Government. Thirdly, in the matter of making a reference of the case of a detenu to the Advisory Board under Section 8 b , the duty of making the reference is cast only on the Central Government or the State Government as the case may be, and number on the officer of the Central Government or the State Government if he makes the order of detention in exercise of the powers companyferred on him under Section 3 1 . Lastly, Section 11, which deals with the powers of revocation of the State Government and the Central Government provides that numberwithstanding that on order of detention had been made by an officer of a State Government, the companycerned State Government as well as the Central Government are entitled to revoke or modify the order of detention. Similarly, as per Clause b numberwithstanding that an order of detention has been made by an officer of the Clentral Government or by a State Government, the Central Government has been empowered to revoke or modify an order of detention. The Section does number companyfer any power of revocation on an officer of the Central or State Government number does it empower the Central or State Government to delegate the power of revocation to any of its officers. We may further add that even though Section 11 specifies that the powers of revocation companyferred on the Central Government State Government are without prejudice to the provisions of Section 11 of the General Clauses Act, this reservation will number entitle a specially empowered officer to revoke an order of detention passed by him because the order of the specially empowered officer acquires deemed approval of the State or Central Government, as the case may be, automatically and by reason of such deemed approval the powers of revocation, even in terms of Section 21 of the General Clauses Act will fall only within the domain of the State Government and or Central Government. In satpal v.state of Punjab, 1982 1 SCC 12 at page 17 the nature of the power of revocation PG NO 840 companyferred on the State and the Central Government came to be companystrued and the Court held that the power of revocation companyferred on the appropriate Government under Section 11 of the Act is independent of the power of companyirming or setting aside an order of detention under Section 8 f . It was further adumbrated as follows. The power under Section 11 l b may either be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Section 3 2 , or, from the detenu in the form of a petition or representation. It is for the Central Government to decide whether or number, it should revoke the order of detention in a particular case. The use or the words at any time under Section 11, gives the power of revocation an over-riding effect on the power of detention under Section 3. These observations were made by the Court when companysidering the question whether a detenu was entitled to companycurrently make representations to the State Government and the Central Government against an order of detention passed by the State Government and whether in such circumstances the State Government companyld companytend that the question of the Central Government companysidering the representation would arise only after the State Government had companysidered the representation and rejected it. Consequently, the resultant position emerging from the Act is that even if an order of detention is made by a specially empowered officer of the Central Government or the State Government as the case may be, the said order will give rise to obligations to be fulfilled by the Government to the same degree and extent to which it will stand obligated if the detention order had been made by the Govenment itself. If that be so, then it is the companycerned Government that woud companystitute the Detaining Authority under the Act and number the officer companycerned who made the order of detention, and it is to that Government the detenu should be afforded opportunity to make representation against the detention order at the earliest opportunity, as envisaged under Article 22 5 and number to the officer making the order of detention in order to provide the detenu an opportunity to make a further representation to the State Government and thereafter to the Central Government if the need arises for doing so. Though an order of detention. his companystitutional obligation is only to companymunicate expeditiously to the deteru the grounds of detention and also afford him opportunity to make representation to the appropriate Governments against his detention. The only further duty to be performed thereafter is to place the representation made by the detenu before the companycerned officer or the Minister empowered under the Rules of PG NO 841 Business of the Government to deal with such representation if the detenu addresses his representation to the officer himself. We may point out that unlike in other Preventive Detention Acts such as the National Security Act, Maintenance of Internal Security Act, Preventive Detention Act etc. the COFEPOSA Act does number provide for any approval by the Government of an order of detention passed by an officer specially empowered to make a detention order. In all the above said Acts, an order of detention passed by an officer specially empowered under the Act will cease to have force after the expiry of the number of days prescribed under the relevant Act unless the said order is approved by the Government within that period. On the companytrary, the COFEPOSA Act does number provide for the State Government or Central Government passing an order of approving of a detention order made by one of its officers and therefore the detention order will companytinue to be operative for the full period of detention unless the order is revoked by the State Government or the Central Government or is quashed by the Court for any reason. This is an additional factor to show that an order of detention passed by an officer has the same force and status as an order of detention passed by the Government itself and this companyld happen only if an order of detention made by an officer is treated as an order of detention made by the Government itself, although through the instrumentality of an officer empowered under Section 3. It is also relevant to clarify at this juncture the position as regards an order of detention passed by an officer specially empowered under Section 3 1 vis-a-vis an order of detention passed t y another officer who besides being empowered to act under Section 3 1 i also companyferred authority under the Rules of Busines of the Government to act on behalf of the Government this difference in the companyferment of powers upon the officers falling under the two categories can number have any impact on the nature of the detention orders respectively passed by them because the companymon factor entitling the officers falling in the two classes is their empowerment under Section 3 1 of the Act. Without such empowerment an officer, even if he be empowered to act on behalf of the Government under the Rules of Business, cannot pass an order of detention against anyone. If this position is realised. then it follows that there is numberscope for companytending that the deiention order made by an officer empowered to act under the Act but number having additional empowerment under the Rules of Business of the Government will number have the effect of making the Government the detaining authority and instead would make the officer PG NO 842 alone the detaining authority and by reason of it stand obligated to afford opportunity to the detenu to make a representation to himself before making his representation to the State Government and the Central Government. It is also relevant to numbere that the Act companyfers powers of revocation only upon the State Government and the Central Government and numberprovision is made for an officer making an order of detention to exercise powers of revocation. When such is the case, any insistence upon the officer making the detention order companysidering the representation of the detenu himself will be numberhing but a futile and meaningless exercise. It will therefore, number be to the advantage of the detenu if it were to be held that in all cases where an order of detenution is passed by an officer, the very officer should companysider the representation in the first instance and only thereafter the detenu can approach the State Government and the Central Government. Moreover, if for arguments sake it is to be assumed that an officer passing an order of detention is uder a duty to afford the detenu an opportunity to make a representation to himself in order to give relief to him, it may lead to the abuse of powers vested in the officer. The possibility of an officer misusing his powers and passing an order of detention against a person and then revoking it in order to seek profit for himself or for other ignoble means, however remote it may be, cannot be ruled out. This aspect of the matter has been touched upon in Raj Kishore Prasad, 1982 3 SCC 10 and the Court which was dealing with the case of a detenu detained under the Natioal Security Act has set out the need as to why a representation made by a detenu against an order of detention made by an officer of the Government should be companysidered by the Government itself and number by the officer companycerned. The relevant passage reads as follows The companytention is that companystitutionally speaking a duty is cast on the detaining authority to companysider the representation. That is of companyrse true. But in view of the scheme of the Act, Parliament has number made it obligatory on the appropriate Government to companysider the representation. This is done presumably to provide an effective check by the appropriate Government on the exercise of power by subordinate officers like the District Magistrate or the Commissioner of Police. Therefore, if the appropriate Government has companysidered the representation of the detenu it cannot be said that there is companytravention of Article 22 5 or there is failure to companysider the representation by the detaining authority. PG NO 843 We have already pointed out that unlike in other preventive detention acts, the COFEPOSA Act does number provide for approval by the Central or State Government of an order of detention passed by one of its duly empowered officers and, companysequently, an order of detention passed by an officer acquiries deemed appvoal by the Government from the time of its issue and by reason of it, the Government becomes the detaining authority and thereby companystitutionally obligated to companysider the representation made by the detenu with utmost expedition. We shall number see whether there is any logic or rational behind the companytention that since D.N. Capoor had made the order of detention, the detenu was entitled, as of right to make a representation to the very same officer and have the same companysidered by him, in the first instance before the detenu availed of his right to make a representation to the State Government and then if need be to the Central Government also. The fallacy and misconception underlying such a companytention has been lucidly brought out in Kavita v. Maharashtra, 1982 2 SCR 138 at 146 and again in Masuma v. Maharashtra, 1982 1 SCR 288 at 293. The relevant passage in Kavitas case reads as under It was suggested that it would have been more appropriate if the representation had been companysidered by the very individual who had exercised his mind at the initial stage of making the order of detention, namely the Secretary to the Government, Shri Samant.There is numbersubstance in this suggestion. The order of detention was number made by Shri Samant as an Officer of the State Government specially empowered in that behalf but by the State Government itself acting through the instrumentality of Shri Samant, a Secretary to Government auhorised to so act for the Government under the Rules of Business. Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction, however, advantageous it may be to do so. Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages. It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages. In Masumas case the same view has been expressed It was the State Government which made the order of PG NO 844 detention and number P.V. Nayak in his individual capacity. The representation made by the detenu against the order of detention was also therefore required to be companysidered by the State Government and either it companyld be disposed of by V. Nayak acting for the State Government under the earlier Standing Order dated 18th July, 1980 or the Minister of State for Home companyld dispose it of under the later Standing Order dated 18th July. 1980. Whether P.V. Nayak companysidered the representation and disposed it of or the Minister of State for Home did so would be immaterial, since both had authority to act for the State Government and whatever be the instrumentality, whether P.V. Nayak or the Minister of State for Home, it would be the State Government which would be companysidering and dealing with the representation. The only requirement of Article 22 5 is that the representation of the detenu must be companysidered by the detaining authority which in the present case is the State Government and this requirement was clearly satisfied because when the Minister of State for Home companysidered the representation and rejected it, he was acting for the State Government and the companysideration and rejection of the representation was by the State Government. There is numberrequirement express or implied in any provision of the COFEPOSA that the same person who acts for the State Government in making the order of detention must also companysider the representation of the detenu In fact, as pointed by Chinnappa Reddy, J. in Smt. Kavita v. state of Maharashtra, 1982 l SCR 138 a Government business can never get through if the same individual has to act for the Government in every case or proceeding or transaction. however, advantageous it may be to do so. if Moreover it would really be to the advantage of the detenu if his representation is number companysidered by the same individual but fresh mind is brought to bear upon it. We do number therefore, see any companystitutional or legal infirmity in the representation having been companysidered by the Minister of State for Home. Mr. Lalit sought to distinguish these decisions by saying that in both the cases the Secretary to Government issuing the order of detention had the authority to act on behalf of the Government under the Rules of Business but D.N. Capoor had numbersuch authority. Since we have pointed out that a detention order passed by an officer having PG NO 845 empowerment under the COFEPOSA Act to make an order of detention would also companystitute an order of the Government by reason of deemed approval, we find numbermerit in the companytention of Mr. Lalit. The ratio in these cases would have equal application to cases of the nature we have on hand. Leaving aside for a moment the absence of any basis in law or rationale for the companytention that if an order of detention is made by a specially empowered officer of the Government, the detenu acquires a right to have his representation companysidered in the first instance by the very same officer and if he is number afforded such an opportunity, it will amount to a deprivation of his companystitutional rights, let us view the matter from a practical aspect and on pragmatic companysiderations. If an order of detention is made by a specially empowered officer and if by the time the representation of the detenu is received by him, the officer is number there to companysider the representation either by reason of his proceedinng on leave or falling sick or transfer or retirement or being placed under suspension or death, then the inevitable companysequence would be that the detenu has to be invariably set at liberty solely on the ground that his representation had number been companysidered by the very same officer who had passd the order of detention. Can we companyceive of such a situation or permit such companysequences to follow when it is companymon knowledge that the services of a government officer in the same post for any length of time can never be guaranteed. As already stated, the officer may fall sick or he may proceed on leave on other grounds or he may retire from service or he may be transferred elsewhere due to exigencies of service etc. If therefore, we are to sustain the view taken by the High Court, it would lead to the position that even if an order of detention is made on very valid and justifiable grounds by a specially empowered officer, the sustainment of the order would depend upon extraneous factors such as the officer number falling sick or going on leave or retiring from service or being transrred etc. etc. Surely, the Act and the Constitution do number envisage such situations. I. is because of these factors Dr. Chitale companytended, and in our opinion very rightly, that if the view of the High Court is to be accepted it would often lead to a defeasance of the COFEPOSA Act itself and the purpose for which it was enacted. We will number companysider the decisions relied on by Mr. Lalit for companytending that the High Court has number balzed a new trail in holding that since D.N. Capoor was the detaining authority he should have companymunicated to and afforded opportunity to the detenu to make the representation to himself in the first instance while informing him that he had a right to make representations to PG NO 846 the State Government and the Central Government. The first two cases Jayanarain v. W. Bengal, 1970 3 SCR 225 and P.K. Chakrabarty v. W. Bengal, 1970 1 SCR 543 were cases pertaining to detention orders passed under the Preventive Detention Act by District Magistrate empowered under the Act to pass the detention orders. In both the cases the detention orders were quashed on the ground that the government had failed to companysider the detenus representation expeditiously and instead had sought umbrage for its action on the ground it had awaited the opinion of the Advisory Board to which it had forwarded the detenus representation. While upholding the detenus companytentions in each of the two cases it was observed in passing that though Clause 5 of Article 22 does number in express terms say so it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make representation and to companysider it when so made Abdus Sukkur v. The State of West Bengal, 1973 1 SCR 680 was a case relating to a detention order passed under the West Bengal Prevention of Violent Activities Act, by the District Magistrate, Bardna. Since the State Government had failed to companysider the representation made by the detenu for a period of 27 days without giving satisfactory explanation for the delay, the detention order was quashed. In so doing the Court observed that the requirement about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority companycerned after giving such an opportunity pays numberprompt attention to the representation which is submitted by the detenu as a result of that opportunity. Vimal Chand v. Shri Pradhan Ors., 1979 3 SCR 1007 was a case where an order of detention was passed under the COFEPOSA Act by the Secretary, Government of Maharashtra, Home Department in exercise of the power companyferred on him under Section 3 1 of the Act. The detention order was quashed by this Court on the ground that the Government had failed to companysider the detenus representation expeditiously and instead had postponed companysideration of the representation till the report of the Advisory Board was received. In the Course of the judgment it was observed that the detenu must be afforded the earliest opportunity of making a representation would be rendered illusory unless there is a companyresponding obligation of the detaining authority to companysider the representation of the detenu as early as possible. In Tarachand v. State of Rajasthan, AIR 1980 SC 2133 the PG NO 847 grievance of the detenu detained under the COFEPOSA Act was that he had sent representations to the detaining authority viz. The State Government and the Central Government on 23.2.1980 but there was a delay of 1 month and 5 days in his representation reaching the State Government and even then the State Government had failed to companysider his representation and pass orders. While striking down the detention order the Court observed that it is well settled that in case of preventive detention of a citizen, Article 22 5 of the Constitution enjoins that the obligation of the appropriate Government or of the detaining authority State Government in that case to afford the earliest opportunity to make a representation and to companysider the representation speedily. The attempt of Mr. Lalit was to highlight the reference to the detaining authority in the general observations in the abovesaid cases by taking them out of their companytext and build up an argument that in all those decisions it has been laid down that there is a companystitutional obligation on every detaining authority to afford opportunity to the detenu to make a representation to the detaining authority himself before making representations to the State Government and the Central Government. In order to point out the mis- companyception in the argument of Mr. Lalit we have set out in brief the facts of each case as well. There was numbercontroversy in any of those cases as to whether the detenus representation should have been companysidered by the officer passing the order of detention or by the Government. On the other hand the challenge made in all those cases to the detention orders was on the ground there had been delay or failure on the part of the companycerned Government in companysidering the representation. The observations in these decisions, therefore, do number have any relevance to the debate in this case. We then companye to two other decisions of this Court which apparently lend support to Mr. Lalits companytention. The more decisive one is Santosh Anand v. Union of India, L1981 2 SCC 420. In that case an order of detention made by the Chief Secretary, Delhi Administration, acting as an officer specially empowered under Section 3 of the COFEPOSA Act was challenged on two grounds, viz. a that it was obligatory upon the detaining authority Administrator to companysider the representation before sending it to the Advisory Board and b that in any event the detenus representation ought to have been companysidered and rejected by the detaining authority itself, namely, by the Chief Secretary but the same had been straight away companysidered and rejected by the Administrator, who under Section 2 f of the Act was the State Government PG NO 848 for the Union Territory of Delhi, thus depriving the detenu of his remedy to approach the Administrator as a higher authority after the rejection of his representation by the detaining authority. The Court came to the view that the companytinued detention of the detenu under the order dated April 3, 1979 is liable to be quashed on the second ground about which facts are clear and there is numberdifficulty in accepting the same. The Court further held as follows Under Article 22 5 , as interpreted by this Court, as also under the provisions of Section 11 of the COFEPOSA it is clear that a representation should be companysidered by the detaining authority, who on a companysideration thereof can revoke the detention order and if the representation is rejected by the detaining authority it is open to the detenu to approach the State Government for revocation of the order and failing that it is open to him to approach the Central Government to get the detention order revoked. The Court further observed as follows It is thus very clear to us that the representation companyld be said to have been companysidered by the Chief Secretary at the highest but he did number take the decision to reject the same himself and for that purpose the papers were submitted to the Administrator who ultimately rejected the same. There is numberaffidavit filed by the Chief Secretary before us stating that he had rejected the representation The representation was, therefore, number rejected by the detaining authority and as such the companystitutional sateguard under Article 22 5 , as interpreted by this Court, cannot be said to have been strictly observed or companyplied with. The next decision is Pushpa v. Union of India, 1980 Suppl SCC 391. The decision was rendered by a single judge companystituting the Vacation Bench of the Supreme Court. That was also a case of a detenu under the COFEPOSA Act against whom an order of detention had been passed by the Chief Secretary to the Delhi Administration who was specially empowered under Section 3 of the Act. The detention was challenged on the ground that the representation sent by the detenu had been companysidered by the Chief Secretary himself, though he was number Competent to reject the representation and the representation had number been companysidered and rejected by the appropriate Government viz. the Administrator. The Court rejected the companytention and held as follows PG NO 849 There is numberhing in the scheme of Article 22 or the provisions of the COFEPOSA which requires that the representation ought always to be companysidered by the appropriate Government numberwithstanding the fact that the order of detention has been made by an officer specially empowered in that behalf. Undoubtedly the power to revoke the detention order under Section 11 is companyferred on the State Government and the Central Government whenever an order of detention is made by an officer of the State Government but that does number imply that the initial representation which a detenu has a right to make after the grounds of detention are furnished to him, must of necessity be made and companysidered by the State Government. In fact, the representation can and ought to be made to the detaining authority because it is he who has to apply his mind to the facts of the case and it is he who has furnished the grounds of detention on which he has acted and it is he who has to be companyvinced that the action taken by him is unjustified and required reconsideration. After all the purpose of a representation is to companyvince the authority to reconsider its decision which has resulted in the detention of the detenu. The representation is number in the form of an appeal to the higher authority and, therefore ipso facto it must go to the State Government. Undoubtedly it would be open to the detenu to make a representation under Section 11 requesting either the State Government or the Central Government, as the case may be, to revoke the order of detention. But the initial representation that a detenu has a right to make on receipt of the grounds of detention would ordinarily be addressed to the detaining authority because it is that authority which has taken a decision adverse to the detenu and which has to be persuaded to re-consider the same. Therefore, if the detenu made the representation to the third respondent who had passed the detention order it was open to him to companysider the same and after applying his mind to accept or reject the same. The failure to submit the representation addressed to the detaining authority and companysidered by him, to the State Government, would number vitiate the detention order. PG NO 850 Though these authorities lend apparent force to the companytentions of Mr. Lalit we are of the view that they cannot be taken as decisive pronouncements on the question of law raised for companysideration before us. In Santosh Anands case supra the challenge to the order of detention was on the grounds and this aspect of the matter has been numbericed in Raj Kishor Prasads case supra , while differentiating the decision. The Bench, however, did number go further into the matter for number following the ratio in Santosh Anands case supra because it was dealing with an order of detention passed under the National Security Act and Section 8 of the said Act specifically provided that the detenu must be afforded opportunity at the earliest point of time to make a representation to the appropriate Government and to the detaining authority. Apart from this fact we have to point out that we do number find any material to substantiate the view taken by the Bench that Article 22 5 has been interpreted by the Court and furthermore Section 11 of the COFEPOSA Act envisages that a representation should be companysidered by the detaining authority, who on a companysideration thereof can revoke the detention order and if the representation is rejected by the detaining authority it is open to the detenu to approach the State Government for revocation of the order etc. etc. On the companytrary, it has been held by a Bench of three judges in N.P. Umrao v. B. Gujral, 197912 SCR 315 at page 321 that it is, therefore, well-settled that in case of preventive detention of a citizen, the Constitution by Article 22 5 as interpreted by this Court, enjoins that the obligation of the appropriate Government to afford the detenu the opportunity to make a representation and to companysider that representation is distinct from the Governments obligation to companystitute a Board and to companymunicate the representation amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion. It is pertinent to numbere that in that case the order of detention was made by the Additional Secretary to the Government of India, Ministry of Finance Department of Revenue but even so the Court held that the Government was the appropriate authority to companysider the representation made by the detenu and the Government had fulfilled its companystitutional obligation in that behalf. Besides we have already pointed out that Section 11 companyfers powers of revocation only on the State Government and the Central Government and the Act does number envisage or companytemplate an officer of the State Government or the Central Government passing an order of detention also exercising powers of revocation. We must, therefore, hold that the decision in Santosh Anands case supra must stand companyfined to the facts of that case and it cannot be PG NO 851 treated as one in which a principle of law of general application in all cases has been enunciated. In fact we may appositely refer in this companynection to a decision by a Bench of three Judges of this Court in Devji Vellabbhai Tandal v. Administrator, 1982 3 SCC 222 where it was held that it is only the administrator in the Union Territory of Delhi who is entitled to companysider the representation of a detenu and reject the same or accept the same and revoke the order of detention. The pronouncement in this case, being one made by a Bench of three Judges, carries with it more binding force than the view taken in Santosh Anands case. Turning number to Pushpas case, apart from being a judgment rendered by a single judge companystituting the Vacation Bench of the Court, can be distinguished on facts. The two representations made by the detenu, in that case, one through an advocate and the other by the detenu himself were both addressed to the Chief Secretary himself and secondly numberrepresentation was made by the detenu to the appropriate Government. These factors had influenced the Court to hold that the Chief Secretary had acted within his companypetence in companysidering the representation addressed to him and in rejecting the same and that if the detenu had any grievance he should have moved the State Govenment under Section 11 to invoke its powers of revocation. In such circumstances this decision cannot also be treated as one having precedential value. In the light of our discussion our answer to the three posers formulated earlier has to be in the negative. It, therefore, follows that we cannot accept or sustain the view taken by the High Court for quashing the order of detention passed against the detenu. Having settled the position of law, it only remains for us to companysider whether the order of detention should be restored and the detenu sent back to custody. On this aspect of the matter Mr. Lalit fervently pleaded that this was number a case where the ends of justice required the detenu being arrested and placed in custody for the rest of the period of detention. He stated that the detenu was a young boy of 19/20 years and that he had already been in custody for 5 months and 3 weeks. It was further stated by him that numberadverse information against the detenu had companye to the numberice of the authorities after he was set at liberty by the High Court. In such circumstances Mr. Lalit pleaded that the Court may allow the appeal by the State only in so far as the settlement of the question of law is companycerned and number going to the extent of ordering the re-arrest of the detenu. In support of his submission the learned companynsel placed PG NO 852 reliance on State of Bombay v. Purshottam Jog Nayak, 1952 SCR 674,at 676 where the Court, following the precedent in King Emperor v. Vimal Bhai Deshpande, ILR 1946 Nagpur 651 at 655 proceeded to decide the appeal after making it clear that the State shall number in any event re-arrest the detenu B who had earlier been detained under Section 3 of the Preventive Detention Act of I950. Dr. Chitale had numberserious objection to the Court following the same procedure in this case. We, therefore direct that numberwithstanding our holding that the High Court was in error in quashing the order of detention made against the detenu, he will number be re-arrested and placed in custody for the rest of the period of detention. In the result the appeal is allowed and the judgment and order of the High Court are set aside but, however, the detenus release will number be effected. S .

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Election Appeal No. 232 NCE of 1987. From the Judgment and Order dated 17.12.1986 of the Bombay High Court in Election Petition No. 1 of 1985. PG NO 1066 Appellant-in-person. M. Khanwilkar and A.S. Bhasme for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. The appellant is a person residing at Pune in the State of Maharashtra. A bye-election was proposed to be held on the 2nd February, 1986 to fill a seat in the Maharashtra Legislative Assembly which had become vacant on account of the death of the sitting member who was representing 263 Jaoli Legislative Assembly companystituency in Satara district in the State of Maharashtra. The last date for making numberinations at the said election was the 10th January, 1986 and the scrutiny of numberination papers was fixed to take place on January 11, 1986. The appellant filed his numberination paper on January 9, 1986. Since he was number registered as an elector in the Jaoli companystituency but was an elector of the Shivaji Nagar Assembly companystituency in Pune, a certified companyy of the relevant entry in the electoral roll of the Shivaji Nagar companystituency in which his name appeared had to be filed along with his numberination paper or had to be produced before the Returning Officer at the time of scrutiny as provided in sub-section 5 of section 33 of the Representation of the People Act, 1951 hereinafter referred to as the 1951 Act . Accordingly the appellant applied to the Tahsildar, Pune city who was also the Assistant Electoral Registration Officer, Shivajinagar Assembly companystituency who was the custodian of the electoral roll in force of that companystituency to furnish him with a certified companyy of the entry pertaining to him in the electoral roll on 6th January, 1986. In that application he specifically mentioned that he required the certified companyy for the purpose of producing it before the Returning Officer of the Jaoli companystituency for enabling him to file his numberination paper. The certified companyy was made ready on 8th January, 1986 and delivered to the appellant on the same day by the Tahsildar, Pune city Assistant Electoral Registration Officer, Shivajinagar Assembly companystituency . The certified companyy was in Marathi language. The material part of the English translation of the said certified companyy read thus Shivajinagar Assembly Constituency List of Voters- 1984 Name of village Hutatma Rajguru Health Camp. PG NO 1067 Taluka- Pune City Distt. Pune Mahanagar Palika Part No. Polling Centre Ward No. 9 No 47 ------------------------------------------------------------ Sl. House No. Name of the voter M F Approximate No. with the name of Age on father mother or 1.1.84 husband. ------------------------------------------------------------ Wadar Kunekar Jagannath M 35 Housing Ramchandra Society Block No. 1 ------------------------------------------------------------ Latest date of publication 31.1.1984 Sd - Electoral Registration Officer 247, Shivajinagar. Assembly Constituency. Pune. Copying Applied on 6.1.1986 Fee Ready on 8.1.1986 delivered on 8.1.1986 Copied by kale. After obtaining the above said companyy on January 8, 1986 the appellant filed his numberination paper as stated above on the next day, i.e. on 9th January, 1986 and along with his numberination paper he produced the certified companyy obtained by him as required by sub-section 5 of section 33 of the 1951 Act. On seeing the said certified companyy the Returning Officer of Jaoli companystituency told the appellant that since it had been numbered in the certified companyy that the latest day of publication of the electoral roll in which the name of the appellant was appearing was 31st January, 1984 he had to bring another certified companyy as there were revisions subsequent to January 31, 1984 Acting on the suggestion made by the Returning Officer the appellant returned to Pune again and applied for another certified companyy on the 10th January, 1986 after the office of the Tahsildar was opened in the forenoon. The Tahsildar told him that the certified companyy would be ready by 4.30 in the afternoon. Ultimately the appellant was able to get that companyy at 5 P.M. on 10th January, 1986. The earliest bus available to the appellant to leave Pune for going to the place where the Returning PG NO 1068 Officer was taking up the work of scrutiny of numberination papers was to start at 9 A.M. on 11th January, 1986. The appellant reached the office of the Returning Officer at about 1 P.M. in the afternoon on 11th January, 1986, i e., the date fixed for scrutiny of the numberination papers and produced the second certified companyy obtained by him before the Returning Officer. The second certified companyy was also in the Marathi language. The English translation of the material part of the second certified companyy reads thus Shivajinagar Assembly Constituency List of Voters- 1984 Name of village Hutatma Rajguru Health Camp. Taluka- Pune City Distt. Pune Mahanagar Palika Part No. Polling Centre Ward No. 9 No. 47 ------------------------------------------------------------ Sl. House No. Name of the voter M F Approximate No. with the name of Age on father mother or 1.1.1984 husband. ------------------------------------------------------------ Wadar Munekar Jagannath M/35 Housing Ramchandra Society Block No. 1 ------------------------------------------------------------ Latest date of publication 29.1.1985 Sd - Electoral Registration Officer 247, Shivajinagar. Assembly Constituency. Pune. Copying Applied on 10-1-86 Paper Ready on 10-1-86 delivered on 10-1-86 Copied by kale. PG NO 1069 TRUE COPY Sd - Tehsildar-Poona City Asstt. Electoral Registration Officer Shivajinagar Assembly Constituency Tal Poona City. Sd - 10.1.86 It is stated by the Returning Officer that before the appellant appeared before him on 11th January, 1986 he had already passed an order rejecting the numberination paper of the appellant on the ground of number-compliance with the provisions of sub-section 5 of section 33 and sub-section 7 of the section 36 of the 1951 Act. The English translation of the order which was in the Marathi language passed by the Returning Officer rejecting the numberination paper of the appellant is as follows I have examined this numberination paper in accordance with section 36 of the Representation of the People Act, 1951 and my decision is as follows In his numberination paper the candidate Shri Jagannath Ramchandra Nunekar, resident of Pune has mentioned his name as being at Sl No. 16 in part No. 47 of the electoral roll for the 247 Shivajinagar Legislative Assembly Constituency. As evidence thereof he has submitted a certified relevant extract from the said electoral roll published on the date 31.1.1984. Under the provisions of Sections 33 5 and 36 7 of the Representation of the People Act, 1951 it was essential for him to submit either the latest electoral roll in force as on the date 31.1.85 or the necessary part of the roll or a certified relevant extract thereof Shri Nunekar was given instructions to that effect at the time of filing of the numberination paper and requested to companyply with the requirements regarding the said legal documents by the time of scrutiny of the numberination paper, that is to say by 11 OClock on the date 11.1.1986. However, the said requirement was number companyplied with even till the time of the scrutiny was over, number did he remain present at the time of the scrutiny. The said numberination paper is therefore rejected. PG NO 1070 Sd - Returning Officer 263, Jaoli, Vidhan Sabha Constituency. Medha Dated 11-1-1986 This translation is done by the Chief Translator at the High Court. Aggrieved by the order rejecting his numberination paper the appellant requested the Returning Officer to review his order since he had produced another certified companyy in which the latest date of publication had been shown as 29.1.1985. The Returning Officer declined to review his order stating that he had numberpower of review and thereafter published the final list of candidates companytaining the names of four companydidates who had, according to him, filed valid numberination papers. The appellants name was number included in the said final list as his numberination paper had been rejected. Thereafter the election was held and respondent No. 1 was declared elected. After the declaration of the result the appellant filed Election Petition No. 1 of 1986 on the file of the High Court of Bombay calling in question the election of the respondent No. 1, alleging that the Returning Officer had improperly rejected the numberination paper filed by him and therefore the election of respondent No. 1 was liable to be set aside on the ground mentioned in section 100 I c of the 1951 Act. Respondents No. 1 to 4 in the election petition were the four other candidates who had filed numberination papers at the election and respondent No 5 was the Returning Officer. Respondents No. 1 and 5 companytested the election Petition by filing separate written statements. They pleaded inter alia that since the certified companyy of the relevant entry of the electoral roll of the Shivajinagar companystituency in which the name of the appellant appeared was number one prepared from the current electoral roll the Returning Officer had rightly rejected the numberination paper of the appellant and there was numberground to interfere with the election of respondent No. 1. At the companyclusion of the trial, the learned Judge of the High Court who tried the election petition dismissed the election petition filed by the appellant holding that he had number companyplied with section 33 5 of the 1951 Act as the certified companyy produced by him on the 9th January, 1986 was number a certified companyy of the electoral roll in force at the time of the election, the certified companyy produced on the 11th January, 1986 had been produced after the order of rejection of numberination paper PG NO 1071 had been passed by the Returning Officer and the Returning Officer had numberpower to review. Aggrieved by the judgment of the learned Judge of the High Court the appellant has filed this appeal under section 116A of the 1951 Act. There is numberdispute that a candidate whose name is found in the electoral roll of a companystituency other than the companystituency from which he is seeking election should produce a certified companyy of the electoral of the companystituency in force in which his name appears or the part thereof or a certified companyy of the relevant entry in such electoral roll before the Returning, Officer either along with the numberination paper or at the time of the scrutiny. That is the mandatory of sub-section 5 of section 33 of the 1951 Act. Sub-section 2 of section 36 of the 1951 Act provides that the Returning Officer shall examine the numberination papers and shall decide all objections which may be made to any numberination and may, either on such objection or on his own motion, after such summary inquiry. if any, as he thinks necessary, reject any numberination on any of the grounds mentioned therein. One of the grounds mentioned in that sub-section is that there has been a failure to companyply with any of the provisions of section 33 which includes the provisions companytained in sub-section 5 thereof. Sub-section 7 of section 86 provides that for the purpose of that section, a certified companyy of an entry in the electoral roll for the time being in force of a companystituency shall be companyclusive evidence of the fact that the person referred to in that entry is an elector for that companystituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act. 1950 hereinafter referred to as the 1950 Act . Sections 14 to 25A of the 1950 Act, which are in Part III thereof, provide for the preparation, revision and maintenance of electoral rolls for assembly companystituencies. Section 15 of the 1950 Act provides that for every companystituency there shall be an electoral roll which shall be prepared in accordance with the provisions of the 1950 Act under the superintendence, direction and companytrol of the Election Commission. A person shall be disqualified for registration in an electoral roll as provided by section 16 of the 1950 Act if he is number a citizen of India, or is of unsound mind and stands so declared by a companypetent companyrt or is for the time being disqualified from voting under the provisions of any law relating to companyrupt practices and other offences in companynection with elections. The name of any person who becomes so disqualified after registration is liable to be forthwith struck off the electoral roll in which it is included. If the name of any person is struck off the electoral roll of a companystituency by reason of a disqualification under clause c of sub-section 1 of PG NO 1072 section 16 of the 1950 Act it shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal. Subject to the provisions of Part III of the 1950 Act every person who is number less that 21 years of age on the qualifying date and is ordinarily resident in a companystituency is entitled to be registered in the electoral roll for that companystituency. The expression qualifying date is defined in clause b of section 14 of the 1950 Act as the first day of January of the year in which the electoral roll is prepared or revised. Sections 21 to 23 of the 1950 Act provide for the preparation and revision of electoral rolls, companyrection of entries in electoral rolls and inclusion of names in electoral rolls. The electoral roll for each companystituency has to he prepared in the prescribed manner by reference to the qualifying date and shall companye into force immediately upon its final publication in accordance with the rules made under the 1950 Act. The said electoral roll shall unless otherwise directed by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date before each general election of the House of People or to the Legislative Assembly of a State and before each bye-election to fill a casual vacancy in a seat allotted to the companystituency and shall be revised in any year in the prescribed manner by reference to the qualifying date it such revision has been directed by the Election Commission, provided that if the electoral roll is number revised as aforesaid. the validity or companytinued operation of the said electoral roll shall number thereby be affected. The Election Commission may at any time, for reasons to be recorded direct a special revision of the electoral roll for any companystituency or part of a companystituency in such manner as it may think fit. These provisions relating to the preparation and revision of electoral rolls are companytained in section 21 of the 1950 Act. It is number necessary to refer in detail for purposes of this case to section 22 of the 1950 Act which deals with the companyrection of entries in electoral rolls and the provisions companytained in section 23 of the 1950 regarding the procedure to be followed if any person whose name is number included in the electoral roll of a companystituency wishes to get his name included in it. What are, however, to be emphasised at this stage are section 21 of the 1950 Act which provides that on the preparation of an electoral roll in the prescribed manner it will companye into force immediately upon its final publication in accordance with the rules made under the 1950 Act vide sub-section 1 of the 1950 Act and the proviso to sub-section 2 of section 21 of the 1950 Act which provides that if the electoral roll is number revised as provided in clauses a and b of sub-section 2 of section 21 of the 1950 Act the validity or companytinued operation of the said electoral roll shall number thereby be PG NO 1073 affected. In order to implement the provisions companytained in Part III of the 1950 Act relating to the preparation and revision of electoral rolls rules have been made under the 1950 Act and they are the Registration of Electors Rules, 1960 hereinafter referred to as the Rules . The rules prescribing the procedure for preparation and revision of electoral rolls are companytained in Part II of the Rules. The electoral registration officer of a companystituency which expression includes an assistant electoral registration officer thereof also is charged with the duties of the preparation, revision and maintenance of an electoral roll. After the electoral roll is prepared under the Rules and published it can be amended in accordance with the decisions of the electoral registration officer under rules 18, 20, 21 and 21-A of the rules. Rule 22 of the Rules provides thus Final publication of roll.-- 1 The registration officer shall thereafter-- Prepare a list of amendments to carry out his decisions under rules 18, 20, 21 and 21A and to companyrect any clerical or printing errors or other inaccuracies subsequently discovered in the roll b publish the roll, together with the list of amendments, by making a companyplete companyy thereof available for inspection and displaying a numberice in Form 16 at his office and c subject to such general or special directions as may be given by the Election Commission supply. free of companyt, two companyies of the roll as finally published, with the list of amendments, if any, to every political party for which a symbol has been exclusively reserved by the Election Commission. On such publication, the roll together with the list of amendments shall be the electoral roll of the companystituency. Where the roll hereafter in this sub-rule referred to as the basic roll , together with the list of amendments, becomes the electoral roll for a companystituency under sub-rule 2 , the registration officer may, for the companyvenience of all companycerned, integrate, subject to any general or special directions issued by the Election Commission in this behalf, PG NO 1074 the list into the basic roll by including the names of electors in the list together with all particulars relating to such electors in the relevant parts of the basic roll itself, so however that numberchange shall be made in the process of such integration in the name of any elector or in any particulars relating to any elector as given in the list of amendments. In the present case there was a basic roll prepared prior to 31.1.1984 in the Shivaji Nagar Assembly Constituency. The name of the appellant was entered at Sl. No. 16 of a supplement which was published on 31.1.1984. It appears there were two more supplements issued subsequently, i.e., one on 27.11.1984 and the other on 29.1.1985. The basic roll and the supplement in which the name of the appellant was found was again published on 29.1.1985. The basic roll and supplements together companystituted one integrated electoral roll. The certified companyy, which was furnished to the appellant on 8.1.1986, i.e., one day before the date on which he filed his numberination paper was a companyy made from the said integrated electoral roll. The said certified companyy was marked as Ex. B-1 in the case and the certified companyy which was furnished to him on 10.1.1986 was marked as Ex. B. The Electoral Registration Officer who was responsible for preparation and maintenance of the rolls, as already stated, was the Tahsildar, Pune. He was examined by the appellant as one of his witnesses in the case. We feel that it is necessary to refer to some portions of the deposition of the Tahsildar, i.e., the Electoral Registration Officer. He stated The petitioner was furnished the extract Exh. B-1 . Exh. B-l is the extract from the electoral list as was current on the date this extract was given to him. I see Exh. D which is the certified companyy of extract furnished to the petitioner on 10.1.86. These two extracts are identical except that the final publication date as stated in Exh. B-1 is 31.1.84 and 19.1.85 in Exh. D. In 1985 the entire list of voters was number again got printed. The date of final publication 29.1.85 as finding place in Exh. D is brought to my numberice. On 29.1.85 it was the supplement along with the original list that was published. PG NO 1075 Three suplements were published on the following dates first on 31.1.84 the second on 27.11.1984 and the third on 29.1.1985. Exh. B-1 was furnished to the petitioner by me on 8.1.86 after taking into companysideration the publication of these supplements also. So also Exh. D. Cross-examination by R-3 and 4 declined. Cross-examination by Shri Vyas for R. 5 It is companyrect that the voters list was finally published on 29.1.85, I am referring to Shivaji Nagar Constituency voters list. It is number true that on the extract Exh. B-1 I put the date of final publication on 31.1.84, because I did number take into companysideration the later publication of 27.11.84 and 29.1.85 emphasis added From the deposition of the Tahsildar Electoral Registration Officer the following points emerge Ex. B-1, the certified companyy, which was produced along with the numberination paper was the extract from the electoral roll as was current on the date the said extract was given to him. In 1985 the entire electoral roll was number again got printed. The certified companyy which was produced along with the numberination paper was furnished to the appellant on 8.1.1986 after taking into companysideration the publication of the supplements on 31.1.1984. 27.11.1984 and 29.1.1985. The basic roll along with the supplement or supplements was published on 31.1.1984 and also on 29.1.1985. In answer to a question put in the cross-examination by the learned companynsel for the Returning Officer, the Electoral Registration Officer stated that it was companyrect that the voters list was finally published on 29.1.1985. He also stated that it was number true that on the extract Ex. B-1 he put the date of final publication as 31.1.1984 because he did number take into companysideration the later publications of 27.11.1984 and of 29.1.1985. PG NO 1076 The appellant, who was a citizen of India and was registered as a voter applied to the Electoral Registration Officer of the Shivaji Nagar Assembly Constituency bona fide for a certified companyy of the relevant entry in the electoral roll companytaining his name for purposes of producing it before the Returning Officer under section 33 5 of the 1951 Act. A certified companyy was accordingly prepared by the officer companycerned and it numberdoubt stated that the supplement in which the appellants name appeared had been last published on 31.1.1984. It did number say that it was number published subsequently. But, on the other hand in the evidence of the Electoral Registration Officer it is stated that even on 29 1.1985 both the original electoral roll and the supplements had been published. It is number the case of any party that there was another electoral roll which was defunct from which the certified companyy produced by the appellant along with the numberination paper had been prepared. There was only one electoral roll in the office of the Electoral Registration Officer of the Shivaji Nagar Assembly Constituency. It companysisted of the basic roll and the three supplements. The name of the appellant. as already stated was in the first supplement which had been published on 31.1.1984 for the first time. There is also numberevidence in this case showing that the name of the appellant had been deleted from the electoral roll subsequently on account of any disqualification incurred by him as provide by section 16 of the 1950 Act. We have number been informed that there is any prescribed form in which a certified companyy of the entries in the electoral roll should be furnished when an application is made for such certified companyy for purposes of section 33 5 of the 1951 Act. There is numberprescription requiring the companyy to state the several dates on which the basic roll or the supplement from which the companyy is prepared had been published. The certified companyy that was produced before the Returning Officer along with the numberination paper was less than 24 hours old when it was presented before the Returning Officer. It is number a certified companyy obtained in 1984 that was being produced in 1986 before the Returning Officer. No candidate had raised any objection to the numberination paper of the appellant. The objection, however had been raised by the Returning Officer himself on the 9th January, 1986 when the appellant filed his numberination paper along with the certified companyy which he had obtained on 8.1.1986. As a subsequence of the said objection he had to rush back to Pune again to obtain another certified companyy. He appeared before the Returning Officer again by about 1.00 P.M. on the date of the scrutiny and produced the other certified companyy. PG NO 1077 The Returning Officer, who companymenced the scrutiny of the numberination paper at 11 A.M. on 11.1.1986 proceeded to reject the numberination paper of the appellant on the ground that the certified companyy of the relevant entry in the electoral roll companyld number be treated as a certified companyy of an electoral roll which was in force at that time. Under the proviso to section 36 5 of the 1951 Act it is provided that in case an objection is raised by the Returning Officer or is made by any other person the candidate companycerned may be allowed time to rebut it number later than the next day but one following the date fixed for scrutiny, and the Returning Officer shall record his decision on the to which the proceedings have been adjourned. The Returning Officer did number choose to wait even for a few hours on 11.1.1986 to give a chance to the appellant to make his plea that what had been produced before him along with the numberination paper was a certified companyy which companyld be acted upon or to produce another certified companyy which in fact he did produce at 1 P.M. on 11.1.1986 before the Returning Officer, even before the final list of candidates, who had filed valid numberination papers, was published on the numberice board The Returning Officer had acted on his own information in rejecting the numberination paper of the appellant. namely, that there was a revision in 1985 and that the certified companyy which had been produced was from an electoral roll which had become defunct. If that was so. he should have secured the necessary material from the companycerned Electoral Registration Officer and placed it before the appellant before rejecting the numberination paper. It is numberdoubt true that the electoral right is a statutory right and a person who wishes to companytest an election should companyply with the law applicable to elections strictly. But in the instant case we that there is numberdefault at all on the part of the appellant. He had actually produced before the Returning Officer a certified companyy which had obtained within less than 24 hourse from the Election Registration Officer of the companystituency where he was residing and that he had number done anything to mislead the Returning Officer. Unless the certified companyy produced before the Returning Officer itself on the face of it showed that the electoral roll from which a certified companyy had been prepared had been substituted by another electoral roll. the Returning Officer was number justified in number treating the production of the certified companyy prepared on 8.1. 1986 as sufficient companypliance under section 33 5 of the 195l Act particularly having regard to the close proximity between the date of preparation of the certified companyy and the date of the production of the certified companyy. In the circumstances unless there was any evidence to the companytrary the Returning Officer should have treated the certified companyy PG NO 1078 produced before him as a certified companyy of the electoral roll for the time being in force of the companystituency to which it related. It is clear from the evidence of the Tahsildar that there was numberother roll which had taken the place of the supplement in which the name of the appellant had been entered. Even the second companyy supplied on 10.1.1986 had been prepared from the same supplement. Both the first certified companyy and the second certified companyy were companyies of the same original. Sub-section 7 of section 36 of the 1951 Act lays down a rule of evidence. It says that a certified companyy of an entry in the electoral roll for the time being in force of a companystituency shall be companyclusive evidence of the fact that the person referred to in that entry is an elector for that companystituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the 1950 Act. In the absence of any such objection on the part of any other candidate or any information which the Returning Officer may have had with regard to the disqualification of the appellant, the Returning Officer should have in the circumstances of this case proceeded to accept the certified companyy produced along with the numberination paper and acted upon it. We hold that the certified companyy produced along with the numberination paper satisfied the requirement of section 33 5 of 1951 Act. We are of the view that in the circumstances the appellant who was an innocent person has been denied the right to companytest the election unreasonably. We hold that the rejection of the numberination paper of the appellant was improper. It follows that the election of the 1st respondent should be declared void in view of the provisions companytained in section 100 1 c of the 1951 Act. We, therefore, allow this appeal, set aside the judgment of the High Court and declare the election of the 1st respondent to the Maharashtra Legislative Assembly from Jaoli companystituency void.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 3159- 3170 of 1988. From the Judgment and Order dated 30.12.1985 of the Andhra Pradesh High Court in Appeal No. 2578 to 2583 of 1985. Rajendra Chowdhary and A. Subba Rao for the Appellants. A. Choudhary, T.V.S.N. Chari, Mrs. Sunita Rao, Badrinath and K. Ram Kumar for the Respondent. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. We grant Special Leave and proceed to dispose of these appeals. These appeals are from a judgment dated 3 December, 1985 of the High Court of Andhra Pradesh in a batch of appeals arising out of land acquisition proceedings. The lands in question are situated in Hasanapur of Karimnagar Taluk. The lands are acquired for the purpose of submergence under Lower Manair Dam Reservoir project. SeCtion 4 1 numberification was issued on 24 March, 1977. The land acquisition officer by his award dated 15 July, 1978 awarded companypensation ranging from Rs.1320 to 4,000 per acre depending upon the nature of the land and the crop grown PG NO 855 thereon. The District Judge on a reference under s. 18 of the Act enhanced the companypensation to Rs.85,000 per acre regardless of categorisation. The High Court by the Judgment under appeals herein has remanded the matter for fresh disposal with liberty for both parties to adduce additional evidence. The high Court has specifically observed that the District Judge should exclude Ex. A. 4 and Ex. A. 5 from companysideration. Ex. A. 4 and Ex. A. 5 are the awards pertaining to acquisition of certain lands situated in Karimnagar. Thereunder, companypensation at the rate of Rs. 85,000 per acre under Ex. A.4 and Rs.70,000 under Ex. A.5 were given. The High Court has observed that the lands companycerned in those awards are number companyparable lands. Hence these appeals. The first question that arises for companysideration is whether Ex. A.5 should be altogether excluded or it should be kept open for being companysidered by the District Judge on merits. This is the specific question on which this Court issued numberice on the Special Leave petition. If first part of the question is answered in the negative, then the second question for companysideration is whether the matter should go back to District Judge for fresh disposal. We heard companynsel on both sides on the merits of the entire matter. The claimants have alleged that the lands acquired are fit for residential houses as they are adjacent to industrial estate. MARKFED factory, Vanaspathi companyplex, diary farm and Padmanagar companyony. The lands have potentiality of being used as house sites and the like of which was sold for Rs.5,000 per gunta prior to the present acquisition. The lands are near to Karimnagar town The town is developing into a modern town in Andhra Pradesh, with a lot of industrial, companymercial, educational activities. They have claimed companypensation at Rs.1,60,000 per acre for dry lands and a little more for wet lands. The evidence in support of their claim companysists of the testimony of one of the claimants PW 1 . He has given a rosy picture of the location and value of the lands. Another witness PW 2 has companyroborated the version of PW 1. Besides we have the evidence of a Commissioner. Mr. G. Santosh Reddy Advocate was appointed as Commissioner in this case. He has filed his report Ex. A.7 and Plan. PG NO 856 The High Court appears to have brushed aside all that evidence. The High Court companypared the companybined map of karimnagar and Hasnapur village Ex. A.3 with the sketch map Ex. A.8 prepared by the Commissioner. The High Court was of opinion that the lands companycerned in Ex.A.5 are abutting Karimnagar town. They are close to MARKFED and other industrial institutions and buildings, but number the lands in question. The High Court said whereas admittedly the lands in question are 3 kms from Karimnagar town. This statement has been seriously disputed before us. It is said that the claimants or their companynsel did number admit, and indeed companyld number have made that admission suicidal to their case. Be that as it may, the distance determined by the High Court whether on admission or by companyparison of village maps makes little difference. The distance from Karimnagar town should number be a ground to reject Ex. A.5. If the lands are suitable for house sites, Ex. A.5 would still be relevant. The location of lands will have to be borne in mind while ascertaining the market value. As to the nature of lands we have the evidence of the Commissioner. He is an Advocate of the local Bar. He had gone to the spot. He had a topographic surveying. According to his evidence, the lands in question are similar in nature and of value as the lands companyered under the Award Ex. A.5. The lands are nearer to companylectorate companyplex, RTC Bus stand and other housing companyplex. He has stated that the lands are more suitable for house sites than for agriculture. There is numberreason to discard this evidence. We cannot therefore, reject Ex. A.5 altogether. The next question for companysideration is whether it is number necessary to keep the remand order undisturbed. Counsel for the claimants is totally against the matter being sent back to the District Judge. He urged that the claimants are small holders and agriculturists. they are hard pressed and unable to fight another round of litigation. I hey are prepared to accept any companypensation which this Court may think fit to award. This plea of the companynsel has an appealing simplicity. It reflects the facts of life and problems of litigation. We can very well appreciate the anxiety and need of claimants to get companypensation here and number. No matter what it is. The lands were acquired as far back in 1977. One decade has already passed. Now the remand means another round of litigation. There would be further delay in getting the companypensation. After all money is what money PG NO 857 buys. What the claimants companyld have bought with the companypensation in 1977 cannot do in 1988. Perhaps, number even one half of it. It is a companymon experience that the purchasing power of rupee is dwindling. With rising inflation, the delayed payment may, lose all charm and utility of the companypensation. In some cases, the delay may be detrimental to the interests of claimants. The Indian agriculturists generally have numberavocation. They totally depend upon land. If uprooted, they will find themselves numberhere. They are left high and dry. They have numbersavings to draw. They have numberhing to fall back upon. They know numberother work. They may even face starvation unless rehabilitated. In all such cases, it is of utmost importance that the award should be made without delay. The enhanced companypensation must be determined with-out loss of time. The appellate power of remand, at any rate ought number to be exercised lightly. It shall number be resorted to unless the award is wholly unintelligible. It shall number be exercised unless there is total lack of evidence. If remand is imperative, and if the claim for enhance I companypensation is tenable, it would be proper for the appellate companyrt to do modest best to mitigate hardships. The appellate companyrt may direct some interim payment to claimants subject t o adjustment in the eventual award. Counsel for the State argued that there is numbermaterial on record for this Court to determine companypensation and the remand may be useful for the claimants themselves. He however. reluctantly indicated his own estimate of the market value in the event of this Court giving a quietus to the litigation. It seems to us that this is number a case ot numberevidence. This is a case of both relevant and irrelevant evidence mixed up together. We must exclude the irrelevant and exaggerated claim. The claimants have number justified the award generously given by the District Judge. Rs. 85,000 per acre appears to be on the high side as against the award Ex. A.5. In the first place, Section 4 numberification companycerned in that Award was dated 16 February l978. It was almost a year after the numberification in these cases. Secondly, the lands therein were close to the town of Karimrtagar. The situation is number similar in this case. Here the lands are 3 kms awy from Karimnagar town. It is in this background I we have carefully companysidered the rough estimates given by companynsel on both sides. We have also examined the relevant material. A distance of 3 kms from a growing town of District headquarters should number however. make a world of difference. We are of opinion that the companypensation at the rate of Rs.25,000 per acre regardless of categorisation would be sufficient to meet the ends of justice. It is needless to state that the claimants are entitled to mandatory solatium PG NO 858 at 30 per cent and also statutory interest. In the result, we allow these appeals and set aside the judgments of the High Court and District Judge. There shall be an award in terms as indicated above.

Case appeal was accepted by the Supreme Court

CIVIl APPELLATE JURISDICTION Civil Appeal Nos. 1866- 68 of l988. PG NO 861 From the Judgment and Order dated 25.7.1986 of the Allahabad High Court in C.M.W.P. Nos. 149, l5l and 172 of 1976. C. Misra, B.B. Singh for the Appellant. K. Jain, R.K. Khanna and R.P. Singh for the Respondents. The Judgment of the Court was delivered by OZA, J. These appeals have been filed by the U.P. Bhooden Yagna Samiti, Kanpur against the judgment of the High Court of Allahabad delivered in Misc. Writ Petition No. 149/76, 151/76 and 172/76. By the impugned order the High Court quashed the Order passed By Additional Collector, Kanpur dated 1.1.76 quashing the Pattas granted in favour of the respondent. In the month of April and May, 1968 the Petitioner before the High Court i.e. present respondent obtained grant under Sec. l4 of the U.P. Bhoodan Yagna Act in respect of various plots of land situated in Village Jahangirabad Paragana Ghatampur, District Kanpur from Bhoodan Yagna Samiti on 17.5.1972. Tehsildar Ghatampur submitted a report to Collector. kanpur and on the basis thereof the Additional Collector, Kanpur issued numberices to these respondents under Sections of the U.P. Bhoodan Yagna Act requiring them to how as to why the settlement obtained by them be number cancelled On following grounds As the petitioners did number reside in the village where the plots were situated they had obtained the grant fraudulently and by misrepresenting facts. As the petitioners did number fall in the category of land-less persons it was number proper to make the grant in their favour. The grants had number been approved by the Government of U.P. After companysidering the objections filed by the respondents. the Additional Collector came to the companyclusion that the Order of the Bhoodan Yagna Samiti settling the land companyld number be justified as it companyld only be made in favour of poor landless agricultural labourers and number in favour of persons like the respondents who were quite well off and who reside in the city of Kanpur, owned propery there and carried on business. In his opinion such persons did number PG NO 862 fall in the category of landless persons as companytemplated under the Act and the grants made in their favour in the year 1968 were irregular and liable to be set aside and on the basis of these reasons the Additional Collector by his order dated 1.1.76 quashed all the grants made in favour of the three respondents against which the writ petitions were filed before the High Court of Allahabad and by the impugned judgment, the Division Bench of the High Court quashed the order passed by the Additional Collector and maintained the grants in favour of the respondents and against this order of the High Court by grant of leave the present appeals are before us. Before the High Court two questions were raised. First was about the jurisdiction of the Additional Collector as under the Act the duties were cast on the Collector to enquire into these matters and therefore on that ground it was companytended before the High Court that Additional Collector has numberjurisdiction. The other ground which was raised before the High Court was that the view taken by the Additional Collector is number in accordance with law. So far as the first ground is companycerned, even the High Court held against the respondents and before us learned companynsel for parties companyceded that to that part of the High Court Judgment there is numberchallenge and this number is number in dispute that the Additional Collector has jurisdiction to enquire into the matter and therefore on that ground it is number necessary for us to dilate any more. We are therefore mainly companycerned with as to whether the settlement made by the Bhoodan Yagna Samiti in favour of the respondent was in accordance with law or which was number in accordance with law and therefore Additional Collector was right in setting aside those allotments. As regards the second question, the facts in this case are number in dispute. The respondents are businessmen residing in Kanpur. It is number in dispute that they have their trade in Kanpur and have properties also and are income tax payers. It is also number in dispute that they are number agriculturists and they had at the time of allotment numberhing to do with agriculture. Apart from it their source of livelihood was number agriculture at all but trade and business. It is also number in dispute that they did number fall into any of the categories of persons depending on agriculture who did number have land in their name. On this ground, it was companytended before the Additional Collector that in fact the allotment was obtained by the respondents PG NO 863 by misrepresenting that they are landless persons and on the basis of this the allotments were made which companyld number be justified. Before the High Court it was companytended that Sec. 14 of the U.P. Bhoodan Yagna Act which provides for allotment of land only talks of landless persons. Sec. 14 as it stood in the year 1968 enabled the Samiti to settle the land vested in it with landless persons. Section neither specifies that such landless persons should also be agricultural labourers number it provided that they have to be residents of a place in which the companycerned lands were located. It was also number provided that the persons must be such whose source of livelihood is agriculture. The High Court on the basis of its earlier decision felt that Section 14 as it stood in 1968 did number provide any one of these qualifying clauses and therefore the respondents who admittedly had numberland in that village and the district, they were companyered by the definition of landless persons, in spite of the fact that they may be traders and paying income-tax, may have properties in the City of Kanpur, still the learned Judges of the High Court felt that they fell within the ambit of the definition of landless persons as it stood in 1968 and therefore settlement made in their favour was justified. High Court relied on Sec. 14 as it stood in 1968. It reads Grant of land to landless persons--The Committee or such other authority or person as the Committee may, with the approval of the State Government specify either generally or in respect of any area, may in the manner prescribed, grant lands which have vested in it to the landless persons, and the grantee of the land shall-- where the land is situate in any estate which has vested in the State Government under and in accordance with Section 4 of the U.P. Zamindari Land Abolition and Reforms Act, 1950, enquire in such land the rights and the liabilities of a sirdar, and where it is situate in any other area, acquire therein such rights and liabilities and subject to such companyditions, restrictions and limitations as may be prescribed and the same shall have effect, any law to the companytrary numberwith-standing. It is number disputed that these allotments were made in accordance with Sec. 14 but had number been approved by the Government and it was even before that the Additional PG NO 864 Collector took numberice of the companyplaint and issued numberice to the respondents and on the basis of his enquiry he cancelled the allotments made in their favour by the Order in 1976 which has been quashed by the High Court. It was companytended by learned companynsel appearing for the petitioner Bhoodan Yagna Samiti that although Sec. 14 quoted above does number clearly indicate what the law meant by landless persons but in view of the scheme of Bhooden Yagna the movement which Acharya Vinoba Bhave and later Jaya Prakash Narain carried out and the purpose of the movement clearly indicated that when in Sec. 14 allotment was companytemplated in favour of landless persons it only meant those landless persons whose main source of livelihood was agriculture and who were agriculturists residing in the village where the land is situated and who has numberland in their name at that time. It never meant that all those rich persons who are residing in the cities and have properties in their possession but who are technically landless persons as they did number have any agricultural land in their name in the tehsil or the village where the land was situated or acquired by the Bhoodan Samiti that it companyld be allotted in their favour. This was number the purpose or the philosophy of Bhoodan Yagna and therefore it was companytended that such a view which has been taken by the learned Judges of the High Court is companytrary to law and the interpretation put by the High Court on the language of Sec 14 companyld number be justified. It was companytended that landless person has to be interpreted in the background of the law which was enacted and the movement and the philosophy behind the movement which was the basis of the enactment of this law and it is only in that background that these words landless persons companyld be properly interpreted. It was also companytended that if there was any doubt left. Sec. 15 makes the things still clearer. Sec. 15 reads Grants to be made in accordance with Bhoodan Yagna Scheme--All grants shall be made as far as may be in accordance with scheme of the Bhoodan Yagna. Sec. 15 provides that all grants shall be made so far as may be in accordance with the scheme of the Bhoodan Yagna, and it companyld number be disputed that Bhoodan Yagna scheme only companytemplated allotment of lands in favour of those landless agricultural labourers who were residing in the villages companycerned and whose source of livlihood was agriculture and who were landless and in that companytext only the landless person companyld be understood as companytemplated PG NO 865 under Sec. 14. It appears that in 1975 by an amendment in place of landless persons in Sec. 14 landless agricultural labourers was substituted and the objects and reasons when this Amendment Bill was moved, clearly go to show that it was because of such errors companymitted that it became necessary to make this amendment. The Objects and Reasons of the Uttar Pradesh Bhoodan Yagna Amendment Act, 1975 reads Prefatory Note--Statement of Objects and Reasons--The Uttar Pradesh Bhoodan Yagna Act, 1952 provides for distribution of Bhoodan land to the landless persons by the Uttar Pradesh Bhoodan Samiti. It has companye to the numberice of Government that in certain cases persons other than land- less persons have also received by fraud the land donated under the said Act. It has also companye to the numberice of Government that in many cases, for various reasons, the land vested in the Committee is number actually distributed. It has, therefore, been companysidered necessary to empower the Collector to cancel the grants received by misrepresentation or fraud, and further, where the companymittee does number grant the land within a period of three years to authorise him to distribute the land according to the provisions of the Act. By this Amendment Act in Sec. 14 in place of landless person landless agricultural labourers was substituted, and this clearly shows that it became necessary only because such errors were companymitted in under-standing the meaning of words landless persons . The rule of interpretation which had been generally accepted in later part of 19th century and the first half of 20th century was that the word should be given its plain ordinary dictionary meaning and it is clear that learned Judges of the High Court in the impugned judgment interpreted the words landless persons on that basis and in so doing they followed their earlier judgment. But if the scheme of Bhoodan Yagna which has to be looked into because of Sec. l5 has been looked into or the purpose of the movement of Bhoodan Yagna which was started by late Acharya Vinoba Bhave and followed by Shri Jaya Prakash Narain was understood, this interpretation would number have been possible. In India we have yet another problem. The movement and the problems which are debated at all levels is number in the language in which ultimately the law to meet those PG NO 866 situations was enacted. The Bhoodan Yagna movement used generally a term Bhoomihin Kissan and it is this term which gained momentum and virtually was understood to mean those agricultural labourers whose main source of livlihood is agriculture but Who have numberlands of their own or who have numberlands agricultural recorded in their names in the revenue record and it is this problem of Bhoomihin Kissan that this movement went on to to settle and this Act was enacted to remedy that problem but our draftsman while drafting the law borrowed the phrase landless person in place of Bhoomihin Kissan and this unfortunately led to the present interpretation put by the High Court in the impugned judgment as the High Court followed the rule of interpretation which in my opinion has become obsolete. At the time when Acharya Vinoba Bhave started his movement of Bhoodan Yagna our rural society had a peculiar diversity. There were some who owned or had leasehold rights in vast tracks of agricultural lands whereas on the other hand there were those who were working on agriculture as labourers in the fields and depending on what little they got from their masters. Sometimes they were even bound down to their masters and therefore had to lead miserable life. It was this problem in rural India which attracted the attention of Acharya Vinoba Bhave followed by Shri Jaya Prakash Narain and they secured large donations of land from big land holders and the scheme of the Bhoodan Yagna movement was to distribute this land to those Bhoomihin Kissan who were living on agriculture but had numberland of their own and it was to make this effective and statutory that this law was enacted and in this companytext it is clear that if one had numbericed even the slogan of the Acharya Vinoba Bhave s movement or its basis and the purpose it would have clearly indicated the problem which was to be remedied by this enactment and if this was looked into for the purpose of interpretation of the term landless persons numberCourt companyld have companye to the companyclusion which has been arrived at in the impugned judgment. In this companyntry we have a heritage of rich literature, it is interesting to numbere that literature of interpretation also is very well-known. The principles of interpretation have been enunciated in various Shlokas which have been known for hundreds of years. One such Shlok Verse which describes these principles with great precision is UPKRAMOP SANHARO ABHYASO UPPURWATA PG NO 867 FALAM ARTHWADOPPATTI CH LINGAM TATPARYA NIRNAYE This in short means that when you have to draw the companyclusion from a writing you have to read it from beginning till end. As without doing it, it is difficult to understand the purpose, if there is any repetition or emphasis its meaning must be understood. If there is any curiosity or a curious problem tackled it should be numbericed and the result thereof must be understood. If there is any new innovation Uppurwatta or something new it should be taken numbere of. Then one must numberice the result of such innovation. Then it is necessary to find what the author intends to companyvey and in what companytext. This principle of interpretation was number enunciated only for interpretation of law but it was enunciated for interpretating any piece of literature and it meant that when you have to give meaning to anything in writing then you must understand the real meaning. You can only understand the real meaning by understanding the reference, companytext, the circumstances in which it was stated and the problems or the situations which were intended to be met by what was said and it is only when you take into companysideration all this background, circumstances and the problems which have to be tackled that you companyld really understand the real meaning of the words. This exactly is the principle which deserves to be companysidered. When we are dealing with the phrase landless persons these words are from English language and therefore I am reminded of what Lord Denning said about it. Lord Denning in The Discipline of Law at Page No. 12 observed as under Whenever a statute companyes up for companysideration it must be remembered that it is number within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is number possible to provide for them in terms free from all ambiguity. The English language is number an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and numberhing else, laments that the draftsmen have number provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were PG NO 868 drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsmen. He must set to work on the companystructive task of finding the intention of Parliament. And it is clear that when one has to look to the intention of the Legislature, one has to look to the circumstances under which the law was enacted. The Preamble of the law, the mischief which was intended to be remedied by the enactment of the statute and in this companytext, Lord Denning, in the same book at Page No. 10, observed as under At one time the Judges used to limit themselves to the bare reading of the Statute itself-to go simply by the words, giving them their grammatical meaning and that was all. That view was prevalent in the l9th century and still has some supporters today. But it is wrong in principle. The Statute as it appears to those who have to obey it--and to those who have to advise them what to do about it in short, to lawyers like yourselves. Now the eccentrics cut off from all that is happening around them. The Statute companyes to them as men of affairs--who have their own feeling for the meaning of the words and know the reason why the Act was passed--just as if it had been fully set out in a preamble. So it has been held very rightly that you can enquire into the mischief which gave rise to the Statute--to see what was the evil which it was sought to remedy. It is number well settled that in order to interpret a law one must under-stand the background and the purpose for which the law was enacted. And in this companytext as indicated earlier if one has bothered to under-stand the companymon phrase used in the Bhoodan Movement as Bhoomihin Kissan which has been translated into English to mean landless persons there would have been numberdifficulty but apart from it even as companytended by learned companynsel that it was clearly indicated by Sec. 15 that the allotments companyld only be made in accordance with the scheme of Bhoodan Yagna. In order to understand the scheme of Bhoodan and the movement of Shri Vinoba Bhave, it would be worthwhile to quote from Vinoba And His Mission by Suresh Ram printed with an introduction by Shri Jaya Prakash Narain and foreword by Dr. S. RadhaKrishnan. In this work, statement of annual Sarvodya Conference at Sevapuri has been quoted as under PG NO 869 The fundamental principle of the Bhoodan Yagna movement is that all children of the soil have an equal right over the Mother Earth, in the same way as those born of a mother have over her. It is, therefore, essential that the entire land of the companyntry should be equitably redistributed anew, providing roughly at least five acres of dry land or one acre of wet land to every family. The Sarvodaya Samaj, by appealing to the good sense of the people, should prepare their minds for this equitable distribution and acquire within the next two years at least 25 lakhs of acres of land from about five lakhs of our villages on the rough basis of five acres per village. This land will be distributed to those landless labourers who are versed in agriculture, want to take to it, and have numberother means of subsistence. Underlining for emphasis by us This would clearly indicate the purpose of the scheme of Bhoodan Yagna and it is clear that Sec. 15 provided that all allotments in accordance with Sec. 14 companyld only be done under the scheme of the Bhoodan Yagna. In the light of the discussion above therefore, the judgment of the High Court companyld number be maintained. The appeals are therefore allowed. The judgment of the High Court is set aside and the orders passed by the Additional Collector are restored. Appellant shall be entiled to companyts of the appeals, companynsel fee Rs.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3175 of 1986. From the Judgment and Order dated 17.8.1985 of the Rajasthan High Court in D.B.S.A. No. 161 of 1985. Satish Chandra and A.V. Rangam for the Appellants. M. Tarkunde and S. K. Jain for the Respondent. The Judgment of the Court was delivered by PG NO 1028 JAGANNATHA SHETTY, J. By obtaining special leave, the State Bank of Bikaner Jaipur Bank has appealed to this Court against the judgment dated September 17, 1985 of the Division Bench of Rajasthan High Court in Special Civil Appeal No. 161 of 1985. The question raised in this appeal is as to the nature of right of the respondent to get an extension of service beyond the age of superannuation. The respondent was an officer of the Bank. His service companyditions were regulated by what is termed as State Bank of Bikaner Jaipur Officers Service Regulations, 1979. The regulations came into force with effect from October 1, 1979. Regulation No. 19 provides for the age of retirement. It also preserves discretion to the Bank . to extend the period of service of any officer beyond the age of retire ment. The relevant portion of Regulation 19 reads Age of Retirement 19 1 An officer shall retire from the service of the Bank on attaining the age of fifty eight years or up to the companypletion of thirty years service, whichever occurs first. Note However, the existing practice of utilising the service of officers beyond the age of 58 years by companysidering individual cases for grant of extension will companytinue only in respect of employees who joined the service as workmen or as officers before the 19th July, 1969. Further, such employees may be granted extension in service instead of re-employment as is the case in the State Bank of Mysore and State Bank of Saurashtra. A suitable diary numbere should be made in this regard and carried over-looked at the time when the case of emplotees who joined on or after 19th July, 1969 companye up for companysideration RER/32/80 dated 20.5.1980 . Provided that the companypetent authority may, at its discretion, extend the period of service of an officer who has attained the age of fifty-eight years or has companypleted thirty years service as the case may be, should such extension be deemed desirable in the interest of the Bank. The aforesaid numbere to Regulation 19 refers to the existing practice in the Bank and that numbere was added by numberification dated May 20, 1980. PG NO 1029 By letter dated June 14, 1979, the Bank intimated the respondent that he was granted extension of service up to September 28, 1982 that is, till he companypleted 58 years of age. By further letter dated July l, 1982 the respondent was informed that he would be attaining superannuation age of 58 years on September 30, 1982 and would stand retired on that date. Accordingly, he was retired from service with effect from September 30, 1982. After an unsuccessful attempt for reconsideration of the case. the respondent took up the matter before Managing Director of the Bank. There also he companyld number succeed. He was informed that his case did number fit in the guidelines of the Bank. The respondent moved the High Court for relief under Article 226 of the Constitution. The Bank resisted the petition companytending inter alia The extension is companysidered on three parameters-- companytinued utility good health, and integrity beyond reproach. since, in the case of the officials whose names have been submitted in the list-D, all the three tests have been fulfilled, their services were extended. In the case of the petitioner? his services were number extended because in the view of the companypetent authority, his companytinued utility in the service of the Bank was found to be restricted. It is submitted that it is number open to the petitioner to claim that he should be granted extension in the service as a matter of right. In this companytext, it is submitted that when orders were issued to the petitioner on the 4th February, 1981 posting him as Branch Manager of a local branch at Jaipur. the petitioner instead of acting in a responsible manner and taking over charge of the branch, immediately proceeded on leave and went on extending it from time to time. Ultimately, the respondent Bank had to cancel the posting on the 1st May, 1981. Moreover, the guidelines for granting extension stipulated that companytinuance of the officers service in his existing grade capacity would be PG NO 1030 useful to the Bank in all its field of activities in a manner that the Bank is number restricted in companytinuing to entrust him with the responsibilities relating to the numbermal placement companymensurate with his seniority and grade and as the petitioner did number satisfy this criteria, the Bank did number grant him extension in service. But by the time the petition came up for companysideration, the Respondent attained 60 years of age. The learned single Judge without going into the merits of the matter dismissed the petition. He observed that it would be unnecessary to enter into the merits since the respondent has companypleted 60 years. The matter was taken up in appeal before a Division Bench of the High Court. The Division Bench accepted the appeal and gave relief to the respondent. It was companymented The order of refusing to give extension to the petitioner appellant was because the extension was number deemed desirable in the interest of the Bank vide Annex. . letter dated July 29, 1982. Hence it is obvious that while companysidering the case of the petitioner the Bank took into companysideration the criteria whether his extension shall be desirable in the interest of the bank and the 13ank did number apply its mind as to whether his services were found unsuitable on the ground of companytinued utility and health or integrity. It appears that the Bank keeping in mind the numbere which was added to sec. 19 1 and only relying on the first proviso Resolution 19 1 they have decided the case of petitioner for extension of service This clearly shows that there was numberserious application of mind while dealing with the case of extension of the petitioner is based on companylateral grounds and it also arbitrary as the Bank has applied different criteria which ought number to have been applied in the case of the petitioner. The Bank has number formed the opinion for number extending the services of the petitioner on any material or relevant companysideration, but has applied in the different criteria altogether and, therefore. the order is based on companylateral and arbitrary grounds. The extension of the petitioner companyld have been refused only if he was found unsuitable on the ground of companytinued utility or good health or integrity and number whether it was desirable in the interest of the Bank. And observed PG NO 1031 It is true that the right of extension of service is number a legal right, but it is a benefit. However, this benefit is number a companycession, but is a privilege to which an officer is entitled after years of hard work in the Bank. It seems to us that the High Court has misconstrued the legal right claimed by the respondent. The right to get extension of service beyond the age of superannuation has received companysideration of this Court in several cases. In State of Assam v. Basanta Kumar Das, l973 3 SCR 158, after reviewing almost all the earlier decisions Kailash Chandra Union of India, 1962 1 SCR 374 B.N. Misra v. State, 1965 1 SCR 693 and State of Assam v. Pramadhar, 1971 1 SCR 503. this Court said at 165 A Government servant has numberright to companytinue in service beyond the age of superannuation and if he is retained beyond that age, it is only in exercise of the discretion of the Government. xxxx xxxxx xxxxx xxxx xxxx xxxxx xxxxx the fact that certain persons were found fit to be companytinued in service does number mean that others who were number so found fit had been discriminated against. Otherwise, the whole idea of companytinuing only efficient people in service even after they had companypleted 55 years becomes only meaningless. What do we have here in this case to distinguish those principles or number to apply those principles? In our opinion, there is numbere. In the scheme provided herein the respondent or any other officer of the Bank has a legitimate right to remain in service till he attains the age of superannuation. But beyond that age, he has numbersuch right unless his service is extended by the Bank. The further rights of parties are regulated by the proviso to Regulation 19 1 . It reads Provided that the companypetent authority may at its discretion, extend the period of service ot an officer who has attained the age of fifty eight years or has companypleted thirty years service as the case may be, should such extension be deemed desirable in the interest of the Bank. Emphasis supplied PG NO 1132 Look at the language of proviso and the purpose underlying. The Bank may in its discretion extend the service of any officer. On what ground? For what purpose? That has been also made clear in the proviso itself. It states should such extension be deemed desirable in the interest of the Bank. The sole purpose of giving extension of service is, therefore, to promote the interest of the Bank and number to companyfer any benefit on the retiring officers. Incidentally the extension may benefit retired officials. But it is incorrect to state that it is a companyferment of benefit or privilege on officers. The officers upon attaining the age of superannuation or putting the required number of years of service do number earn that benefit or privilege. The High Court has companypletely misunderstood the nature of right and purpose of the proviso. The proviso preserves discretion to the Bank. It is a discretion available with every employer, every management, State or otherwise. If the Bank companysiders that the service of an officer is desirable in the interest of the Bank, i may allow him to companytinue in service beyond the age of superannuation. If the Bank companysiders that the service of an officer is number required beyond superannuation, it is an end of the matter. It is numberreflection on the officer. It carries numberstigma. The Bank, however, is required to companysider the case of individual officers with due regard to i companytinued utility ii good health and iii integrity beyond reproach of the officer. If the officer lacks one or the other, the Bank is number bound to give him extension of service. In this case, the Bank has shown to the High Court that the case of Respondent was companysidered and he did number fit in the said guidelines. The High Court does number sit in an appeal against the decision. The High Court under Article 226 cannot review that decision. It was however, argued for the respondent that the Bank falls within the companycept of State for the purpose ot enforcement of fundamental rights. The Bank, therefore, cannot extend the service of some and reject the case of others similarly situated. The companycept of Article 14 of the Constitution is relied upon. The argument in our opinion, proceeds on a wrong premise. The Bank has numberobligation to extend the services of all officers even if they are found suitable in every respect. The interest of the Bank is the primary companysideration for giving extension of service. With due regard to exigencies of service, the Bank in one year may give extension to all suitable retiring officers. In another year, it may give extension to some and number to all. In a subsequent year, it may number give extension to any One of the officers. The Bank may have a lot of fresh recruits in One year. The Bank may number need the services of all retired persons in another year. The Bank may have lesser PG NO 1033 work load in a succeeding year. The retiring persons cannot in any year demand that extension to all or numbere. If we companycede that right to retiring persons, then the very purpose of giving extension in the interest of the Bank would be defeated. We are, therefore, of opinion that there is numberscope for companyplaining arbitrariness in the matter of giving extension of service to retiring persons. In the result, we allow the appeal and set aside the judgment of the High Court.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1945 of 1984. From the Judgment and Order dated 16.12.1983 of the Bombay High Court in W.P No 4356 of 1983. Karanjawala. Mrs. Manik Karanjawala and Ejaz Maqbool for the Appellants. PG NO 62 S. Krishnamurthy, R.N. Keshwani, Dilip Jhangiani, V.K. Punwani and M.K.D. Namboodiri for the Respondents. The Judgment of the Court was delivered by SEN, J. This appeal by special leave is directed against the judgment and order of the High Court of Bombay dated 16th December 1983 declining to interfere with the judgment and order of the Maharashtra State Cooperative Appellate Court, Bombay dated 31st October, 1983. By the impugned judgment the Appellate Court up-held the judgment and order passed by the Judge, First Cooperative Court, Bombay dated 28th August, 1981 directing the appellants to vacate and hand over possession of Flat No. 16 on First Floor of Block No. 8 in the housing companyony known as Shyam Niwas, situate at Warden Road, number called Bhulabhai Desai Road, Bombay and to pay mesne profits Rs.450 per month and a further amount of Rs.42.50 towards maintenance, car parking and water charges w.e.f. Ist August 1981. The facts of the case are as follows. By an agreement in writing dated 1st January 1964, the disputant the late Smt. Devibai H. Advani, who was a tenant companypartner member, permitted the appellants father Rajpal Bhatia, user of her Flat No. 16 for a period of 11 months as from that date on the terms and companyditions stated in the said agreement. Both the parties made a joint application for admission of the said Rajpal Bhatia as a numberinal member of the society and the society granted the requisite permission for his occupying the flat in dispute on terms of leave and licence. At the request of Rajpal Bhatia, the said agreement for leave and licence was renewed for 11 months each by further agreements and thereafter the period was further extended 11 months by an endorsement. The late Smt. Devibai Advani by her lawyers numberice dated 21st May 1969 terminated the agreement for leave and licence. On 30th June 1969 she made a claim under s. 91 of the Maharashtra Cooperative Societies Act, 196 for short the Act before the District Deputy Registrar for the eviction of the said Rajpal Bhatia alleging him to be in unauthorised occupation of her flat. The claim as laid by her was that she was a tenant member of the society and that Rajpal Bhatia was in unauthorised occupation. Her claim for eviction was however register by Rajpal Bhatia inter alia on the ground that the transaction between the parties was one of lease and number of licence and therefore the Registrar had numberjurisdiction to enter upon the reference under s. 91 of the Act inasmuch as his jurisdiction to enter upon such claim was barred under s. 28 of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947 Bombay Rent Act for short . That objection of his PG NO 63 was sustained by the Officer on Special Duty by his judgment and award dated 16th November 1972. The learned Officer on Special Duty held that the parties stood in the jural relationship of landlord and tenant and further that the dispute in question did number touch upon the business of the society within the meaning of s. 9 1 of the Act. Aggrieved, the disputant the late Smt. Devibai Advani carried an appeal to the Maharashtra State Cooperative Appellate Tribunal. The Tribunal by its judgment and order dated 8th February 1974 allowed the appeal and remanded the case for a decision afresh on the question whether the disputant the late Smt. Devibai Advani was a tenant company partner member or a tenant owner member. It is however necessary to mention that the Tribunal held that the society was a mixed type of society having both tenant companypartner members and tenant owner members but since the disputant described herself as a tenant member, and particularly having regard to the fact that Rajpal Bhatia get himself admitted as a numberinal member queried If she was an owner member where was the necessity of taking permission of the society for letting the flat? Nor was there any necessity for Rajpal Bhatia to seek admission as a numberinal member which made him subject to the bye-laws of the society. According to the Tribunal, these circumstances were more in companysonance with the status of the disputant being a tenant member. It went on to say that there was numberevidence led to establish that the flat in question was sold to the disputant and accordingly remitted the aforesaid issue for a decision afresh. During the tendency of the appeal, the late Smt. Devibai Advani made an application praying that the society be transposed as disputant number 2. Despite the opposition of Rajpal Bhatia. the application for transposition was ultimately allowed. Initially when the society was registered, it was really governed by the regulation in Form A. It however appears that by mistake, as is evident from the affidavit sworn by Atmaram Jhangiani, Chairman of the society, regulation in Form P which relates to tenant owner members was adopted. This mistake was detected in the year 1949 and accordingly at the Annual General Meeting of the society held on 3rd September 1949 it was declared that Form B was inapplicable and therefore the mistake was rectified by a unanimously carried resolution that regulation in Form A be adopted instead of regulation in Form B. The District Deputy Registrar, Cooperative Societies, Surat by order dated 10th July 1950 approved of the amendment and accordingly Form A was adopted and Form B deleted. The PG NO 64 modification in the byelaws was approved by a resolution carried at the General Body Meeting of the society held on 26th November 1950 and forwarded to the District Deputy Registrar for approval. After the adoption of Form A, byelaw 10 a pro tanto stood amended. Due to sheer inadvertence, however, byelaw 10 a remained in the form it was framed and this has given rise to an endless argument before us. In the certificate to incorporation issued by the Registrar, Cooperative Societies the society is classified as a tenant companypartnership society companysisting of tenant company partner members. The mistake in allowing the byelaw 10 a as originally framed making reference to tenant owner members, came to the numberice of the society in 1974 when the said byelaw was deleted and substituted by a fresh byelaw 10 a which made numberreference to the admission of membership of any owner member to the society or to the regulation in Form B. On remand, the only companytention advanced before the Judge, First Cooperative Court, Bombay was that the society was a tenant companyownership type of society and number tenant company partnership type. The learned Judge by his order dated 8th September 1976 recorded a finding that the society, in fact, was a tenant companypartnership type of society and therefore the disputant was only a tenant companypartner member. Against his order Rajpal Bhatia went up in revision to the Maharashtra State Cooperative Appellate Court which by its order dated Ist July 1977 dismissed the revision as number pressed. Thereafter, the dispute came up for adjudication before the learned Judge, First Cooperative Court, Bombay who framed five issues in all. The learned Judge allowed the parties to adduce their evidence thereon. After companysidering the evidence on record, the learned Judge by his judgment dated 28th August 1981 came to a definitive finding that the claim of the disputant was a claim touching the business of the society under s. 91 of the Act that the society is a companypartnership type of society and number of companyownership that the real nature of the transaction between the parties was that embodied in the formal agreement for leave and licence dated 1st January 1964 and further that after termination of the licence the possession of the said Rajpal Bhatia was wrongful. According, the learned Judge rendered an award directing the said Rajpal Bhatia to vacate and hand over possession of the flat in question. The appellants father Rajpal Bhatia went up in appeal before the Maharashtra State Cooperative Appellate Court but without any avail. It held inter alia that in view of the letter addressed by the District Deputy Registrar, Cooperative Societies, Bombay dated 22nd November 1978 intimating the Court that Form B had been deleted after PG NO 65 the resolution passed at the Annual General Meeting held on 3rd September 1949 and the amendment of the byelaws effected by order of the District Deputy Registrar dated 10th July 1950, and particularly in view of the fact that in the latest companyy of the bye-laws there is numberreference to Form B, the companyclusion was inescapable that the society is a tenant companypartnership housing society and Form B as was originally appended to the byelaws was numberlonger applicable. It observed that in view of its earlier judgment in Appeal No. 236/78--Messrs Bharat Sales Service Anr. v. Smt. Rukibai Naraindas Bhavnani Anr., decided on 12th January, 1979 taking that view upon investigation into the facts, which was upheld by the High Court in O.N. Bhatnagar v. Smt. Rukibai Naraindas Bhavnani Anr., in Miscellaneous Petition No. 271/79, decided on 21st April 1981, and later by this Court in O.N. Bhatnagar v. Smt. Rukibai Naraindas, 1982 3 SCR 681, it was numberlonger possible to companytend that Shyam Cooperative Housing Society Limited was a tenant ownership housing society and number a tenant companypartnership housing society. It further observed that in view of the decision of this Court in O. N. Bhatnagar s case, learned companynsel appearing for the appellants companyceded the legal position but companytended that the decision in O.N. Bhatnagar was distinguishable on facts. It observed It has to be numbered that Form A was made applicable to all the buildings of the society and number to a particular block or building. No doubt, the byelaws of the society were amended much later i.e., in the year i976 though the resolution proposing the amendment was passed in the meeting held on 25.12.1974. It appears that, though Form A was made applicable in the year 195 to the society companyresponding amendment was made on 25th December, 1974 and thereafter it was approved on 28th April, 1976. That will number make any difference because once Form A is made applicable and once Form B is deleted from the bye-laws the intention of the society was to companyvert the society to a Tenant Co partnership type of society. Moreover, it has to be numbered that the present appellant was inducted in the said premises on 1st January, 1964, i e. much after the Form A was adopted. As mentioned above, it is number open to the present appellant to challenge the status of the respondent No. I Devibai because, as mentioned above, the respondent No. I had surrendered her status as tenant owner and had become tenant companyartner member of the society. Under these circumstances, there is numberother alternative but to hold PG NO 66 that the society is number a mixed type of society but it is a tenant companypartnership type of Society. Further, the Appellate Court held that merely because the disputant described herself as the owner of the flat was number decisive of the question as to whether she was a tenant companypartner member or a tenant owner member, and added Even though the respondent No. 1 described herself as the owner of the flat, we feel that as she has purchased the flat from the society she might have described herself as the owner. In companymon parlance the flats which are purchased from the society or from the builders are called as ownership flats and very often we find that even a member in a tenant companypartnership type of society describes himself or herself as owner of the flat, either because he has purchased the flat or he has companytributed towards the companyt of the companystruction. In the light of the principles laid down by this Court in Associated Hotels of India Ltd. v. R.N. Kapoor, 1960 I SCR 368 the Appellate Court further held on a companysideration of the evidence adduced by the parties that the parties intended by the agreement to create a licence and number a lease. It also held that the dispute was a dispute touching the business of the society. Shri R.F. Nariman, learned companynsel for the appellants argued the appeal with great clarity, much resource and learning we heard him with companysiderable interest. It was companytended, firstly, that the intention Of the disputant the late Smt. Devibai Advani was to demise the flat in question and therefore the real transaction was one of lease though camouflaged in the form of an agreement for leave and licence and therefore the jurisdiction of the Registrar under s. 91 of the Act to adjudicate upon the reference was barred by s. 28 of the Bombay Rent Act and secondly, that neither of the two resolutions subsequently adopted by the Annual General Meeting or the General Body Meeting number the order of the District Deputy Registrar companyld change the intrinsic character of the real status of the disputant who was admittedly a tenant owner member, and the finding of the Appellate Court that she must be deemed to have relinquished her status as tenant owner member and became a tenant company partner member of the society is patently erroneous. Learned companynsel very candidly accepted that he does number rely upon s. PG NO 67 15A of the Bombay Rent Act. That had to be so because in the first place his entire submission proceeds on the basis that the transaction between the parties was one of lease and number of licence and secondly, even otherwise, the licence having admittedly been terminated by the disputants numberice dated 2Ist May 1969, there was numbersubsisting licence existing as on 1st February 1973 and s. 15A interms would be inapplicable. We are afraid, in view of the decision of this Court in O.N. Bhatnagar s case, the companytentions advanced by the learned companynsel cannot prevail. There can be numberdoubt whatever from the terms of the agreement dated Ist January 1964 as well as the overwhelming evidence on record taken in companyjunction with the facts and circumstances appearing, companypled with the companyrse of companyduct of the parties that the real transaction was one of lease and number of licence. The agreement between the parties is embodied in the usual standard form of an agreement for leave and licence. The parties being executants thereof are bound by the terms of the agreement. There is numberhing to suggest that the agreement for leave and licence was merely a device to camouflage the real nature of the transaction viz. creation of a tenancy, which would clearly be against the bye-laws of the society. The disputant the late Smt. Devibai Advani, the licensor, was only a tenant companypartner member and all that she companyld do under the terms of the bye- laws was to create a licence with the permission of the society by making the licensee to be a numberinal member thereof. The evidence adduced by the disputant clearly shows that the flat in question was taken on a licence for a term of 11 months which was renewed from time to time at the request of the late Rajpal Bhatia till the disputant terminated the licence by numberice dated 21st May 1969. We also find numbermerit in the companytention that the jurisdiction of the Cooperative Courts to adjudicate upon the dispute under s. 91 of the Act was barred by s. 28 of the Bombay Rent Act. The matter is directly companyered by the decision of this Court in O.N. Bhatnagars case. In rejecting the companytention that a dispute of this nature was number a dispute touching the business of the society within the meaning of s. 91 1 of the Maharashtra Cooperative Societies Act. it was observed In the present case, the society is a tenant company partnership type housing society formed with the object of providing residential accommodation to its companypartner tenant members. Now, the nature of business which a society carries PG NO 68 on has necessarily to be ascertained from the object for which the society is companystituted, and it logically follows that whatever the society does in the numbermal companyrse of its activities such as by initiating proceedings for removing an act of trespass by a stranger, from a flat allotted to one of its members, cannot but be part of its business. It is as much the companycern of the society formed with the object of providing residential accommodation to its members, which numbermally is its business, to ensure that the flats are in occupation of its members, in accordance with the bye-laws framed by it, rather than of a person in an unauthorised occupation, as it is the companycern of the member, who lets it out to another under an agreement of leave and licence and wants to secure possession of the premises for his own use after the termination of the licence. It must, therefore, follow that a claim by the society together with such members for ejectment of a person who was permitted to occupy having become a numberinal member thereof, upon revocation of licence, is a dispute falling within the purview of s. 91 1 of the Act. In dealing with the inter-relation between the number- obstante clause in s. 91 1 of the Act and that in s. 28 of the Rent Act, it was observed It seems to us that the two Acts can be best harmonised by holding that in matters companyered by the Rent Act, its provisions, rather the provisions of the Act, should apply. But where the parties admittedly do number stand in the jural relationship of landlord and tenant, as here. the dispute would be governed by s. 91 1 of the Act. No doubt, the appellant acquired a right to occupy the flat as a licensee, by virtue of his being a numberinal member, but in the very nature of things, his rights were inchoate. In view of these companysiderations, we are of the opinion that the proceedings under s. 91 1 of the Act were number barred by the provisions of s. 28 of the Rent Act. It is quite evident from the affidavit sworn by Atmaram Jhangiani, Chairman of the Shyam Cooperative Housing Society Limited, that the society is purely a tenant companypartnership type of Housing society companysisting only of tenant companypartner members and there are numbertenant owner members in the society number are there any tenant owner members in block No. X where the flat in question is located. As H already stated, while framing the bye-laws regulation in Form Bwas PG NO 69 by mistake adopted. This mistake was realised in 1949 and at the Annual General Meeting of the society held on 3rd September 1949 it was decided that the regulation in Form B was inapplicable and therefore the mistake was rectified by deleting Form B and substituting Form A. This amendment was duly approved by the District Deputy Registrar, Bombay by his order dated 10th July 1950. The aforesaid resolution was duly ratified at the General Body Meeting of the society. That being so, bye-law 10 a making a reference to tenant owner members became a mere superfluity and was wholly redundant. The rights of the parties cannot be spelled out from the terms of the bye-law 10 a as originally framed. Nor would the mere description by the disputant the late Smt. Devibai Advani describing herself to be the owner of the society, affect the classification of the society because she was, in fact and in law, numberhing but a tenant companypartner member. It also appears from the certificate of registration issued by the Registrar, Cooperative Societies that the society was classified as a tenant companypartnership housing society. The erroneous description in bye law-10 a of the society having tenant owner members came to be rectified when the said bye- law was replaced in l974 by a new bye-law 10 a . In view of the subsequent change brought about by the amendment of the bye-laws, there was numberquestion of the disputant being regarded as a tenant owner member. The Appellate Court as well as the learned Judge of the First Cooperative Court have rightly held her to be a tenant companypartner member. The appellants father Rajpal Bhatia having been inducted into the premises under the terms of the agreement for leave and licence dated 1st January 1964, cannot be heard to say that disputant was a tenant owner member and number a tenant company partner member or that the transaction was one of lease and number of licence. These aspects are companycluded by the companycurrent finding of fact based on appreciation of evidence recorded by the Courts below. There is numberreason for us to companye to a companytrary companyclusion. We cannot but briefly refer to a few of the decisions cited. As explained in the affidavit sworn by Atmaram Jhangiani. Chairman of the society, the decision in Sabharwal Brothers v. Smt Guna Amrit Thandani, 1973 I SCR 53 proceeds on the assumption that Smt. Guna Amrit Thandani was an owner member. It appears that the true and companyrect factual position was number placed before the Court that under the changed bye-laws of the society, particularly after the deletion of Form B, she companyld only he a tenant companypartner member. It follows that the ultimate companyclusion arrived at was based upon inaccurate facts. Be that as it may, a decision based upon a statement of inaccurate facts which has numbersemblance of reality would number change the actual PG NO 70 legal status of the society as a tenant companypartnership type of housing society, number the classification made by the Registrar, Cooperative Societies in his certificate of incorporation issued by him, classifying the society as a tenant companypartnership society companysisting only of tenant company partner members. In view of the real factual position number brought out, it is difficult to companye to the companyclusion that the society was a mixed type of society or that the building in question where the flat in dispute is situate, was a multi-storeyed building companysisting of residential flats of both types viz. tenant owner flats and tenant companypartnership flats. In any event, the decision in Sabharwal Brothers case is clearly distinguishable on facts. The companytention of Shri Nariman that the society was a mixed type of society must therefore fail. The decision of this Court in Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, 1975 Suppl. SCR 270 is also distinguishable. In that case, the question was whether a flat in a tenant companypartnership housing society was liable to attachment and sale in execution of a decree. The Court laid down that the right to occupy the flat owned by a companyperative housing society is a species of property. It was further held that there was numberhing in the language of s. 31 of the Maharashtra Cooperative Societies Act to indicate that the right to occupation of such a flat which was the right sought to be sold by auction, was number attachable in execution of the decree. Nor was there anything in the section to even remotely include a prohibition against attachment or sale of the aforesaid right to occupation of the flat. The only restrictions under s. 29 2 of the Act are that the member may number transfer his interest in the property prior to one year and the transfer is made to an existing member of the society or to a person whose application for membership has been accepted by the society. As regards bye-law 710 the Court observed that any companytravention of the bye-law would number make the assignment invalid under the Act unlike in the case of a transfer being void under s. 47 3 . Further, that s. 29 read with r. 24 shows that there is numberprohibition as such against transfer of a share to a member or even to a number-member if he companysents to be a member and makes an application for membership, by purchasing five shares as provided under bye- law 9. The ultimate decision of the Court was that the right to occupation ot a flat is property both attachable and sale able, inasmuch as s. 60 of the Code of Civil Procedure, l908, is number exhaustive as such. It also refers to any other sale able property, movable or immovable, whether the same be held in the name of the judgment-debtor or by another person on his behalf. The right to occupation of a flat is property both attachable and sale able. Specific number- inclusion of a particular species of property under s. 60 is PG NO 71 therefore number of any companysequence if it is sale able otherwise. the decision in Ramesh Himmatlal Shahs case is therefore of little or numberassistance. Chainani, CJ speaking for himself and V.M. Tarkunde, J. in Dr. Manohar Ramchandra Sarfare v. The Konkan Co-operative Housing Society Ltd. Ors., AIR 1962 Bom. 154 brought out the true companycept of a tenant companypartner housing at p. 157 in these words T he property in the whole estate remains absolutely with the society as a whole. The member companytributes in the first instance by shares and then pays rent so calculated as to companyer number only the economic rent of his tenant or house, but also an amortization or sinking fund payment, which at the end of 25 years or 40 yars, as the case may be, repays the whole value of the building. At the end of that period, he is credited with further shares in the society equivalent to the value that he has paid up and the numbermal interest on these shares is equal to the economic rent which he has to pay. At the end of the period he is therefore in the position of occupying the building free of rent Or merely so as a tenant of the society of which he is himself a member and therefore a companytrolling authority. See also I.R. Hingorani v. Pravinchandra, 1966-67 Bom. LR 306 Contessa Knit Wear v. Udyog Mandir Cooperative Housing Society. AIR 1980 Bom. 374 and Bandra Green Park Co- operative Housing Society Ltd. Anr. v. Mrs. Dayadasi Kalia Ors. AIR 1982 Bom. 428. These cases more or less reflect the different views that have prevailed in the High Court but the law is number governed by the principles laid down by this Court in O. N. Bhatnagars case . The result therefore is that the appeal must fail and is dismissed l with companyts. The appellants are however given six months time to vacate the disputed premises on their furnishing the usual undertaking to the Registrar of this Court within four weeks from today in the form of affidavits sworn by each one of them that they shall deliver vacant and peaceful possession to respondents number.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 1521 Of 1987 Under Article 32 of the Constitution of India Anil Dev Singh, G.L. Sanghi, Serva Mitter, Miss Vrinda Grover and T.V.S.N. Chari for the Petitioners. S. Desai, A.S. Bhasme and A.M. Khanwilkar for the Respondents . The Judgment of the Court was delivered by NATARAJAN, J. Writ Petition No. 1521 of 1987 has been filed under Article 32 of the Constitution of India to challenge the companystitutional validity of Section 41 of the Bombay Sales Tax Act hereinafter referred to as the Act on the ground it companyfers arbitrary powers of exemption on the State Government so as to exempt all types of new units from the payment of purchase tax, sales tax and central sales tax under the Package Scheme of Incentives, 1979. PG NO 75 On numberice being issued in the writ petitions, the respondent State of Maharashtra has filed affidavit in reply and the petitioner has filed a rejoinder. In order to exempt in public interest any specified class of sales or purchases from payment of the whole or any part of the tax payable under the Act, the State Government gave to itself powers of exemption under Section 41 of the Act. In exercise of its powers under Section 41 the Government had been issuing numberifications so as to grant exemption in appropriate Gases from payment of sales tax or purchase tax or both, as the case may be. One of such numberifications issued by the Government under Entry 136 was for granting full tax exemption for the purchases of the inputs and the sales of finished goods of new units set up in the backward areas of the State. The Government also issued numberification under Section 85 of the Central Sales Tax Act to the sales of finished goods of such units from payment of Central Sales Tax. These tax exemption benefits were accorded to the new industries by way of I incentives for development of industries in backward areas, 2 promotion of the dispersion of industries all over the State, 3 the industrialisation of backward areas and 4 for creating employment opportunities in the backward areas. By virtue of the exemption numberifications issued by the Government in exercise of its powers under Section 41, the industries engaged in the production of edible as well as number-edible oils set up in backward areas came to enjoy the benefit of exemption from paying purchase tax sales tax. Subsequently, the Government came to realise that the sales tax exemption given under the Package Scheme of Incentives, 1979 for a period ranging from 5 to 9 years without any limit had companyferred far more benefits on some of the industries companycerned than what the Government had in mind when the numberifications granting tax exemptions were made and that the exemption facility was number only adversely affecting the Governments finances but was also placing the existing small scale units on a companyparative disadvantage. The Government, therefore, passed a Resolution on July 5, 1982 No. IDL-7082/ 3559 IRD-8 to modify the Package Incentives Scheme and the benefits following therefrom in order to limit the benefit to 1 of the fixed capital investment of the small scale units. Since the Package Scheme of Incentives, 1979 provided for giving numberice of six months for any change or modification in the scheme, the modified scheme dated 5th July, 1982 was proposed to be brought into force in respect of small scale units, with PG NO 76 effect from 10th January, 1983. The Government, however, numbericed that during the intervening period of numberice, a number of small scale units, particularly the oil units, tried to take advantage of the unlimited incentives to the disadvantage of the existing units and also caused loss to the public exchequer in respect of the revenue from sales tax. The small scale units also sought to take advantage of the decision of the Bombay High Court in Tapti Oil Industries and Anr. v. State of Maharashtra Ors., 1984 56 STC 193 by claiming benefit of tax exemption without any limit, thereby causing a companytinuing loss to the revenue. The Government, therefore, companysidered it would number be expedient in the public interest to companytinue the companycession and, that suitable provision must immediately be made in the Act so as to limit the benefit of the exemption from payment of sales tax under the Package Incentive Schemes to the extent of 100 of the gross fixed capital investments of the eligible units as approved at the time of the grant of eligibility certificate or to such other lower ceiling of percentage that may have been provided for under the eligibility certificate issued to the small scale unit. Since both the Houses of the State Legislature were number in Session, the Government passed Ordinance No. 5 of 198 and inter alia introduced Section 41A which read as under 41A. 1 Notwithstanding any things companytained in this Act or in any judgment, decree or order of any Court or T Tribunal to the companytrary. on and after the date of companymencement of the Bombay Sales Tax Amendment Ordinance. 1985 hereinafter in this section referred to as the companymencement date the cumulative quantum of benefit drawn or availed of by any registered dealer of an Eligible Unit in respect of payment of any tax by virtue of the exemption granted under the provisions of section 4 shall number exceed one hundred per cent of the gross fixed capital investment of the Eligible Unit as approved at the time of grant of Eligibility Certificate, or such other lower ceilings of percentage, if any, as may be provided under the Eligibility Certificate issued in accordance with the provisions of any Package Scheme of Incentives. Where, in the case of any registered dealer of an Eligible Unit the cumulative quantum of benefit availed of by him, has exceeded the limit laid down in sub-section I on the companymencement date, or exceeds such limit on any day PG NO 77 after the companymencement date, then the Eligibility Certificate shall cease to have any effect in relation to the exemption from payment of tax under this Act or under the Central Sales Tax Act, 1956, and the Certificate of Entitlement shall stand automatically cancelled on the companymencement date or any such day, as the case may be, and such registered dealer shall number be entitled to claim any further benefit of exemption from payment of such tax under the Eligibility Certificate of the Certificate of Entitlement on or after the companymencement date or any such day, as the case may be, and the dealer shall surrender the Certificate of Entitlement together with all the unused Form BC which have been attested by the Sales Tax authorities to the Commissioner forthwith and in any case within 15 days from the companymencement date or any such day. Notwithstanding anything companytained in subsections I and 2 , numberregistered dealer of an Eligible Unit shall be entitled to claim any benefit of exemption from payment of any tax beyond the period companyered by the Eligibility Certificate and the provisions of sub-section 2 regarding surrender of the Certificate of Entitlement together with the unused Form BC shall mutatis mutandis apply to such registered dealer The Ordinance came to be replaced by the Amendment Act, 1985 under the Amending Act the Government made certain modifications and directed that the withdrawal of the tax exemption benefit will stand companyfined to the edible oil units only. Section 41A, as introduced in the main Act by the Amending Act No. XV of 1985 reads as follows 41A. Notwithstanding anything companytained in this Act or in any judgment, decree or order of any Court or Tribunal to the companytrary, on and after the date of companymencement of the Bombay Sales Tax Amendment Act, 1985 hereinafter in this section referred to as the companymencement date , the Eligibility Certificate granted to any Registered dealer of an Edible Oil unit in accordance with the provisions of any Package Scheme of Incentives shall cease to have any effect in relation to the exemption from payment of tax under this Act or under the Central Sales Tax Act, 1956, and the Certificate of Entitlement issued in favour of such PG NO 78 Registered dealer by the Commissioner under entry 136 of the Schedule to the numberification issued under section 41 shall stand automatically cancelled on the companymencement date and such Registered dealer shall number be entitled to claim any further benefit of exemption from payment of such tax under the Eligibility Certificate or the Certificate of Entitlement on and after the companymencement date, and he shall surrender the Certificate of Entitlement with all the unused Form BC which have been attested by the Sales Tax authorities to the Commissioner forthwith and in any case on or before the 31st day of August, 1985, unless he has already surrendered the same earlier. Section 8 of the Amendment Act which repealed Ordinance V of 1985 further provided as follows 8. 2 It is hereby declared that numberwithstanding anything companytained in section 7 of the Bombay General Clauses Act, 1904, on such repeal, the following companysequences shall ensue The Eligibility Certificate and the Certificate of Entitlement issued to any Registered dealer of the Eligible Unit other than the Registered dealer of Edible Oil Unit shall number be deemed to have been cancelled and Where the Certificate of Entitlement and the unused Form BC are surrendered by any Registered dealer of the Eligible Unit other than Registered dealer of Edible Oil Unit, the same shall be restored to the Registered dealer, who has surrendered the same The Registered dealer of the Eligible Unit other than the Registered dealer of Edible Oil Unit shall be deemed to have been entitled to claim the same benefits of exemption of sales tax to which he was entitled before the companymencement of the said Ordinance Any Sales Tax on sale of finished goods recovered by any Registered dealer of the Eligible Unit other than the Registered dealer of Edible Oil Units during the period from the companymencement of the said Ordinance till the publication of this Act in the Official Gazette, shall be paid into PG NO 79 Government Treasury alongwith the return and the tax so paid shall stand forfeited to the State Government and thereupon the provisions of sub-section 6 of Section 38 shall mutatis mutandis apply to the tax so forfeited. Thus it may be seen that by reason of Act XV of 1985, the sales tax exemption facility originally granted under the Package Scheme of Incentives 1979 to all small scale units newly started stood withdrawn only in so far as edible oil units are companycerned, and number to small scale units engaged in producing number-edible oils. By a trade circular No. DED 1485/2591ADM-3 dated 15.10.1986. it was clarified that an edible oil unit under the Act XV of 1985 would mean a unit engaged in delinting, decorticating or processing of groundnuts or other oilseeds crushing of groundnuts or other oilseeds and manufacture of edible oil refining of edible oil or hydrogenation of edible oil. It was also clarified that the Act would number be applicable to units producing and selling number edible oils and that units manufacturing and selling washed companytonseed oil, Soyabean raw oil Grade l and un-refined sunflower cake oil would number fall under the category of units manufacturing edible oil and as such those units will be entitled to avail of the tax benefits even after 1.8.1985, provided that the eligibility certificate specifically made mention of the particular oil as the finished product produced and sold by the companycerned eligible unit. The trade circular stated that the clarification was being given after obtaining the opinion of the companycerned department of the Government of India about what companystitute edible oil and number edible oils. Notwithstanding the Amended Sections and the trade circular the petitioners who are engaged in producing washed companytonseed oil tried to companytend before the authorities that washed companytonseed oil would also fall in the category of edible oil and that several technical authorities have given their opinion to that effect and as such the extension of PG NO 80 sales tax exemption facility to units engaged in the production of number edible oils was against law and was number only depriving the government of its legitimate revenue but was also detrimentally affecting the interests of the old units which were engaged in producing washed companytonseed oil etc. These companytentions were number accepted by the State Government with the result that the withdrawal of the tax exemption provision remained companyfined only to the units engaged in producing edible oils and number to units engaged in producing number edible oils. Aggrieved by this position the petitioners have companye forward with this petition under Article 32 of the Constitution. Two companytentions were advanced by the learned companynsel for the petitioner to assail Section 41 of the Act. It is apposite to mention here that in his petition the petitioner has number impugned the validity of Section 41A which disentitles only the units producing edible oil from having the companytinued benefit of tax exemption. This factor by itself weakens in the attack of the petitioner on the companystitutional validity of Section 41. Leaving aside this aspect of the matter, we will number companysider the specific grounds on which Section 41 is assailed. In the first place it is stated that while the government realised. at the time of passing the Ordinance that the lax exemption scheme granted in favour of all the newly started eligible units had companyferred tax benefits transcending by far the limits of assistance companytemplated by the government and that the tax exemption benefits were adversely affecting the public exchequer as well as the old units and had, therefore, made Section 41A introduced by the Ordinance applicable to all eligible units which had been given the benefit of tax exemption. the revised Section 41A introduced by Act XV of 1985 had restricted the withdrawal provision only to the units engaged in producing edible oil and has allowed the other eligible units to companytinued to have the unfair advantage of tax exemption benefit. The second argument was that washed companytonseed oil is also an item of edible oil although it required some processing for making it fit for human companysumption and therefore, the new units which were engaged in producing washed companyton seed oil should also be classified as units producing edible oils so that those new units, should also pay purchase tax and sales tax in the same manner the petitioner was paying. By way of extension to the second companytention it was pointed Out that while the old units had to pay purchase tax, sales tax, turn over tax etc. totaling Rs.1,650 per metricton, the new units producing the same washed companytonseed oil got away scot-free without paying any tax and they stood placed in a very advantageous position. PG NO 81 On an examination of the companytentions we find that neither of them has any merit. Section 41 has been in the statute book eversince the Act was enacted. It has been provided in order to enable the State Government to grant exemption from payment of purchase tax and sales tax of any specified class of sales or purchases if such grant of exemption was felt justified. It is open to the Government to give the benefit of tax exemption either to the full extent or to a partial extent The Section itself states that the power of exemption is being companyferred on the government in order to enable it to act in public interest. It is number, therefore as if power. has been given to the government to act in an arbitrary manner or for companyferring largess on any section of manufacturers or traders. In exercise of its powers under Section 41 the government has been granting exemption by means of several numberifications in favour of various trades and industries as and when the circumstances warranted the granting of exemption in public interest. It can, therefore, be safely taken that Section 41 has with stood the test of time and has enabled the government to promote public interest, by granting tax exemption benefit, whenever needed. One of the companytentions advanced by the petitioners companynsel was that while the power of exemption can be granted on any specified class of sales or purchases from payment of tax, the government was number entitled to grant exemption only in favour of new units set up in backward areas from the payment of purchase tax, sales tax and central sales tax. In other words the argument was that if the Government wanted to grant exemption in favour of such units, then the government should have granted the benefit of tax exemption to all the units in backward area which were engaged in the production of he same type of goods as the new units were engaged in. We are unable to accept this companytention because the exemption granted in favour of the of the new units has a sound economic and public policy underling it. The policy has been set out by he government in he companynter affidavit filed b it in W.P. No. 1527of 1987 in the following manner. I submit that these benefits are in accordance with the policy of the Government to give Sales Tax incentives to he new Units in backward a areas in order to achieve dispersion of industries, industrialisation of back wad areas as also of he purposes of creating employment opportunities in he backward areas and as such exemption is granted in he large public interest in order to enable the new units o successfully companypete with the older. Units in he initial yeas of production in order to occasion sufficient foothold PG NO 82 in an established industry. I further submit that this classification is reasonable in all respects and is number at all arbitrary as established Units have several advantages over new Units in as much as the overhead assets are less and hence numberfundamental right is infringed in any manner of the old Units . It cannot, therefore, be companytended that the old units should also have been granted the same benefit as new units since both the units are engaged in the manufacture of the same type of products. Infact such a policy, if followed by the government, would number only fail to provide incentive to the new industries but would also place the new units at a companyparative disadvantage in being made to face stiff companypetition with older units which have been established at lesser companyt and which have stabilised themselves in the field by successfully running the units for a number of years. The words in Section 41 exempt any specified class of sales or purchases companyld well be companystrued as applying to the grant of exemption to the new units because the sales and purchases effected by new entrants would companystitute a specified class by themselves in companytra distinction with the class of sales and purchases effected by the older and seasoned units. In so far as the second companytention is companycerned, viz. that washed companytonseed oil would also fall in the category of edible oils inspite of the fact that it has to be processed still further for being made fit for human companysumption. we find that the companytention is number a tenable one. The petitioner had companytended before the government that washed companytonseed oil is also one type of edible oil but the government have rejected this companytention stating that since washed companytonseed oil cannot be made use of without further processing for direct human companysumption, it would number fall in the category of edible oil. This position is number companytroverted by the petitioners and, therefore, as long as the washed companytonseed oil that is produced is sold without further processing it will number companystitute edible oil. The government therefore. are well within their powers in refusing to accept the petitioners companytention that washed companytonseed oil is also edible oil and, therefore all the new units which are engaged in the manufacture of washed companytonseed oil should also be rendered ineligible from enjoying the benefit of tax exemption as has been done in the case of units producing edible oil. Yet another companytention of the petitioners companynsel was that the term oil would include edible as well as number PG NO 83 edible oil and therefore, there was numberreason or justification for the government to have removed the benefit of tax exemption to units manufacturing edible oil alone and allow the companytinuance of the benefit of tax exemption to new units producing number edible oil. Even this companytention is devoid of substance because even though edible and number edible oils may fall under the general heading of Oils they undoubtedly companystitute two seperate groups which are capable of distinct classification on intelligible basis. Lastly, companying to the argument that new units engaged in producing number edible oil derive a huge benefit by way of tax exemption while the older units stand penalised and getting crushed out of existence, the government have examined the matter fully and found that the new units engaged in the production of edible oil alone have derived undue advantage by reason of the tax exemption, and that the other eligible units engaged in the manufacture of other products including number edible oils have number derived benefit to such an extent as to justify revocation of the tax exemption benefit. This assessment exercise falls purely within the domain of the Executive and it is number for the Court to see whether other edible units also derive huge benefits and as such government ought to have revoked the tax exemption benefit in their cases as well. As already stated the classification between units engaged in producing edible oils and number edible oils is on an intelligible and sustainable basis and as such the Court cannot hold that the government should treat both kinds of units alike and direct the withdrawal of the tax exemption benefit in the case of number edible oil producing units also. For all these reasons we hold that Section 41 of the Bombay Sales Tax Act is number violative of Articles 14, 19 and 21 of the Constitution as alleged by the petitioner in W.P. No. 1521 of 1987. In the result W.P. No. 1521 of 1987 will stand dismissed. There will he numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Special Leave Petition Civil No. 6577 of 1988. From the Judgment and order dated 27.4.1988 of the High Court of Allahabad in C.M.W. No. 3777 of 1987. L. Sanghi and Manoj Prasad for the Petitioner. PG NO 278 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This application for leave to appeal under Article 136 of the Constitution arises from the judgment and order of the High Court of Allahabad, dated 27th April, 1988 by the judgment under challenge the Division Bench by majority directed the Addl. City Magistrate or the Officer at present exercising the power of Distt. Magistrate under Rule 10 9 of the U.P. Urban Buildings Regulation of Letting, Rent Eviction Rules 1972 to issue numberice on all the five landlords mentioned in the petition within one week of the filing of the certified companyy of the Order, and thereafter to make an Order in accordance with law and in the light of the observations made in the said Judgment. The petitioner before the High Court, who is the petitioner herein also, was directed number to be dispossessed until disposal of the matter by the High Court. This application is by the tenant-petitioner. The premises in question had five companyowners, namely, Veeresh Saxena, R.C. Saxena. D.C. Saxena, Smt. Shanti Saxena and S. Saxena, respondent No. 3. Until January, 1978, Veeresh Saxena was in sole and exclusive actual physical possession of the shop and carried on business in it. In January, 1978 the present petitioner filed allotment application for the shop and he was the sole applicant. On 28.1.1978, Veeresh Saxena vacated the shop and sent intimation of vacancy to the Rent Control Officer under the U.P. Urban Buildings Regulation of Letting Eviction Act, 1972 hereinafter called the Act . The Rent Control Officer, then, directed him to appear in the allotment proceedings The Inspector reported that Veeresh Saxena was found to be in possession of the shop, discontinuing the business and was going to let out the shop. On the Inspectors report being pasted on the Notice Board of the Rent Controller Office, neither B.S. Saxena number the other 3 companyowners filed any objection. Veeresh Saxena filed an affidavit before the Rent Control Officer that he wanted to let out the shop to the petitioner. The 3 other companyowners never objected to the petitioners tenancy on the allotment order throughout the last 10 years. The allotment letter was accordingly passed on 12th February, 1978. The possession was, thereafter, taken up, it was alleged by the petitioner in the special leave petition. The petitioner had alleged that he had invested more than Rs.2 lakhs in the shop, but B.S. Saxena. who was a number-occupant owner, on or about 25th February, 1978 filed an application under section 16 5 of the Act, after 25 days of allotment, for review of the Order. It was alleged by the petitioner that the evidence was overwhelmingly in support of the fact that he had taken PG NO 279 possession of the premises on or about 4/5th February, 1978. The Rent Controller, however, on the said application of S. Saxena allowed the review application and cancelled the allotment order. revision against the said order was filed before the learned Judge under section 18 of the Act. The learned Addl. Distt. Judge dismissed the revision. The petitioner, thereafter, filed a writ petition in the High Court of Allahabad . The question arose about the maintainability of the review application under section 16 5 of the Act. It is upon this point that the matter has been agitated before us. There was a difference of opinion about the maintainability of the review application at the instance of a number-occupant owner and the matter was referred to a Bench of 3 learned Judges and by majority the Division Bench came to the companyclusion that such an application was maintainable. The petitioner herein companytends that the High Court was wrong in the view it took on the companystruction of Section 16 5 b of the Act. The relevant provisions of the said sub-section read as follow 5 a Where the landlord or any other person claiming to be lawful occupant of the building or any part thereof companyprised in the allotment or release order satisfies the District Magistrate that such order was number made in accordance with clause a or clause b as the case may be of sub-section I , the District Magistrate may review the order Provided 1hat numberapplication under this clause shall be entertained later than seven days after the eviction of such person . Where the District Magistrate on review under this sub-section sets aside or modifies his order of allotment or release, he shall put or cause to be put the applicant, if already evicted, back into possession of the building, and may for that purpose use or cause to be used such force as may be necessary. 6 x x x Every order under this section shall subJect to any order made under sec. 18 be final. PG NO 280 The companytention is that a landlord who was number in actual physical possession until making of the allotment order or is evicted in pursuant thereof, is number companypetent to make an application for review of the allotment order or release order under section 16 5 a b of the Act. Admittedly, as mentioned hereinbefore, the respondent applicant was number in occupation when the Order was made. He was, however, indisputably a landlord. So, the question is whether on the companystruction of the section, a landlord who Is number in actual physical possession at the time of the release order, is entitled under the law to apply for review of the order. The High Court held that he is entitled. We are of the opinion that the High Court was right. Section 16 5 a speaks of where the landlord or any other person. Hence,there are two categories of persons companytemplated i.e. a landlord, or any other person. The requirement of sub-section, to be in lawful occupation of the building or any part thereof, applies Only in case of Lany other person claiming to be in lawful occupation and number in case of landlord. The Section has used the expression or and so the expression or is disjunctive of these two categories to be treated separately. Hence, the requirement to be in lawful occupation. is number there in case of an application by the landlord. Mr. G.L. Sanghi, learned companynsel appearing for the tenant, has sought to argue that by virtue of the proviso a landlord who was number in occupation, was number entitled to apply. We are unable to accept this. The proviso puts an embargo of 7 days in making the application for review. It can only apply to those who were in lawful occuaption at the time of the making of the original Order. It cannot curtail the rights of the landlord, as such, it only affects any other person who was lawful occupation. In any event, it is a well-settled principle of companystruction that unless clearly indicated, a proviso would number away substantive rights given by the Section or the sub-section. A land lord has a right to the property. The Section should number be companystrued as to defeat the right to possession of property in appropriate cases unless the intention of the Legislature is manifest We find numbersuch clear intention in the facts of this case. We are, therefore,. of the opinion that the High Court came to the companyrect companyclusion that a landlord, even though number in actual physical possession at the time of the possession of the property. call ask for review of the order of release or allotment. It must be borne in mind that this view was also expressed by Mr. Justice N.D.Ojha, as our learned brother then was, in his judgment in Niren Kumar Das The District Judge, Pilibhit Ors., AIR 1977 Allahabad PG NO 281 We agree with that interpretation. In that view of the matter, there is numbersubstance in the companytentions urged in the specil leave petition. The application is, therefore,rejected.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 977 of 1976. From the Judgment and Order dated 8.3.1976 of the Guwahati High Court in Civil Rule No. 261 of 1973. N Mukherjee, N.R. Choudhary and Ranjan Mukherjee for the Appellant. PG NO 325 Prabir Choudhary for the Respondents. The Judgment of the Court was delivered by OJHA, J. This appeal by special leave has been preferred against the Judgment dated 8th March, 1976 of the Guwahati High Court in Civil Rule No. 261 of 1973. The appellant who was a Sub- Inspector of Police in Assam was dismissed by the Superintendent of Police, Darrang district, Tezpur, by Order dated 29th January, 1973. This order was passed without companypliance with the requirements of Article 311 2 of the Constitution on the ground that it was a case to which the provisions of clause b of the second proviso to Article 311 2 were attracted. The appellant preferred an appeal to the Inspector-General of Police, Assam Shillong . The said appeal having been dismissed he challenged the order of dismissal as well as the appellate order under Article 226 of the Constitution in Civil Rule No. 261 of 1973 referred to above. The various submissions made on behalf of the appellant did number, however, find favour with the Learned Judges who heard the civil rule mentioned above resulting in its dismissal by the judgment appealed against. Two submissions have been made by learned companynsel for the appellant The appellant having been appointed as Sub-Inspector of Police by the Inspector General of Police, the order of his dismissal by the Superintendent of Police, Darrang, was illegal being in companytravention of article 311 1 of the Constitution. The provisions of clause b of the second proviso to article 311 2 of the Constitution were number attracted to the facts of the instant case and companysequently the order of dismissal was illegal having been passed without companypliance with the requirements of article 311 2 . In order to appreciate these submissions, it would be useful to extract article 311 of the Constitution. It reads Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State-- 1 No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed PG NO 326 or removed by an authority subordinate to that by which he was appointed. No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall number be necessary to give such person any opportunity of making representation on the penalty proposed Provided further that this clause shall number apply-- a where a person is dismissed or removed in rank on the ground of companyduct which has led to his companyviction Oil a criminal charge or b where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason. to be recorded by that authority in writing, it is number reasonably practicable hold such inquiry or c where the President or the Governor, as he the case may be, is satisfied that in the interest of the security of the State it is number expedient to hold such inquiry. If, in respect of any such person as aforesaid, a question arises whether it ia reasonably practicable to hold such inquiry as is referred to in clause 2 , the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. Having heard learned companynsel for the parties, we find it difficult to agree with any of the submissions referred to above, In support of his first submission, learned companynsel for the appellant placed reliance on a Memo dated 7th July, 1967 from the office of the Inspector- General of Police which According to him was the letter of appointment whereby the appellant was appointed as a Sub-Inspector of Police. According to learned companynsel for the appellant this being so the order of dismissal having been passed by the Superintendent of Police, Darrang, who was admittedly an PG NO 327 authority subordinate to that by which the appellant was appointed, was on the face of it illegal. With regard to this submission, we are of the opinion that the said Memo cannot be treated as the letter of appointment of the appellant. It reads as hereunder Express Office of the Inspector General of Police Assam Memo No. F/1/93/Vol. 16/51 Shillong, the 7th July, 1967. From Shri P.C. Das, I.P.S., Deputy Inspector General of Police Assam To Md. Ikramuddin Ahmed Borah, Ward No. III, P.O. Mariani, Jorhat , Dist. Sibsagar, Subject Recruitment of temporary Sub-Inspector of Police Unarmed Branch for 1967 You are hereby informed that you are provisionally selected for appointment as temporary Sub-Inspector of Police U.B. subject to final and satisfactory police verification report. Please report to the Principal, Police Training College, Dergaon on 17th July 1967 positively for training failing which your name will be struck off the list of selected candidates. The details relating to books uniform required for training in the companylege should be obtained from the Principal, Police Training College, Dergaon on your joining for the training. Your provisional appointment letter will be issued by the Principle, Police Training College, Dergaon on joining. PG NO 328 In pursuance of the aforesaid Memo the Principal Police Training College, Dergaon, issued Memo dated 17th July, 1967, the relevant portion whereof reads as under OFFICE OF THE PRINCIPAL Police Training College Dergaon. APPOINTMENT LETTER Memo No. 10712 A PTC dated, Dergaon, the 17th July 1967. Shri Ikramuddin Ahmed Borah, s o Late A. Ahmed Borah Vill. Mariani, P.O. Mariani, P.S. Mariani, Dist. Sibsagar is hereby informed that he has been provisionally appointed as a Cadet Sub-Inspector of Police in Assam with effect from 17-7-1967 A.N. He should provide himself with the books and uniforms. 2 to 6 Principal, Police Training College, Assam may expel or discharge him any time during the training if his progress or discipline or behaviour shows that he is number likely to be tit for Police service. Principal Police Training College, Assam, Dergaon. Even on a bare perusal of the two Memos mentioned above, it is apparent that by Memo dated 7th July, 1967 which was issued by the Deputy Inspector General of Police, the appellant was only informed that he had been provisionally selected for appointment as temporary Sub-Inspector of Police U.B. and the order of appointment was to be issued by the Principal, Police Training College which indeed was issued by the subsequent Memo dated 17th July, 1967. This memo seems to have been sent by the Deputy Inspector General of Police as President of the Selection Board companystituted for the purpose according to the procedure for appointment of a Sub-Inspector to be found in Assam Police Manual in Part III. Rule 11 x at the relevant time as it appears from the judgment appealed against read as hereunder PG NO 329 11. x Direct recruitment of Sub-Inspectors The final selection will be made by the Deputy Inspector General of Police sitting as President of a Selection Board, which will companysist of himself and 2 Superintendents of Police appointed by the Inspector -General of Police. The order of appointing Probationary Sub-Inspectors will be issued by the Superintendents of Police of the Districts from which the candidates are numberinated. Rule 66 deals with proceedings to be drawn up in cases of major punishment. The said rule companytains a schedule. Item No. 3 of companyumn I refers to Sub-Inspector of Police. Column II indicates that the appointing authorities of a Sub-Inspector of Police inter alia are Superintendent of Police S.P. S.S.P. C.I.D. Commandant of Battalion, Principal, APTC that is Assam Police Training College . Deputy Inspector General of Police is shown as the final appellate authority. Rule 11 x and the schedule referred to above are the relevant provisions in pursuance whereof the selection was made of the appellant vide Memo dated 7th July 1967 and the appointment order was issued by the Principal Training College, Dergaon vide Memo dated 17th July, 1967. Consequently, Superintendent of Police and Principal, Police Training College, Assam, are authorities having companyrdinate jurisdiction according to companyumn Il of the schedule. The appellant having been appointed by Principal Police Training College Dergaon, Assam, and having been dismissed by the Superintendent of Police, Darrang, who was a companyrdinate authority, the submission made by the learned companynsel for the appellant that the order of dismissal was illegal having been passed by an authority sub-ordinate to that by which he was appointed. obviously therefore has numbersubstance. Coming to the second submission, we find it necessary to refer to the order of dismissal in extenso. It reads O. No. 320 dated 29.1.73. Whereas it has been made to appear before me that proby. Sub-Inspector of Police Ikramuddin Ahmed Borah was appointed as proby. Sub-Inspector of Police on l7.7.67 against a temporary vacancy AND PG NO 330 Whereas said Ikramuddin Ahmed Borah since his joining the department, his service in all branches of Police work where he had been tried leaves much to be desired and that companysistent efforts by his senior officers for improving his work has proved abortive and further that despite the above drawbacks the said S.I.s companyduct and integrity has recently been found to be doubtful and the said S.I. has been recently misusing his official position to the detriment of general social well-being and to his personal gain. AND Whereas I am satisfied that it is number reasonably practicable to hold any inquiry as companytemplated under Clause 2 of Article 311 of the Constitution of India because of number-availability of witnesses who would number testify against the said S.I. of Police out of various companysiderations such as fear and because of the likelihood of causing of damage to the Police image and administration before the general public in the event of holding of such an enquiry Now, therefore, in exercise of powers under proviso b clause 2 of Article 311 of the Constitution of India, l, Shri N. Goswami, Superintendent of Police Darrang District, Tezpur, hereby order that said Ikramuddin Ahmed Borah be dismissed from the force with effect from the date of issue of this order. Said Ikramuddin Ahmed Borah is accordingly dismissed from the police service. Sd - P.N. Goswami N. Goswami Superintendent of Police, Darrang, District Tezpur. The scope of clause b of the second proviso to Article 311 2 and of Article 311 3 came up for companysideration before a Constitution Bench of this Court in Union of India and Anr v. Tulsi Ram Patel and Others, 1985 supplementary 2 S.C.R., page 131. While companystruing the clause it is number reasonably practicable to hold such enquiry used in clause b aforesaid, it was held PG NO 331 Thus, whether it was practicable to hold the inquiry or number must be judged in the companytext of whether it was reasonably practicable to do so. It is number a total or absolute impracticability which is required by clause b . What is requisite is that the holding of the inquiry is number practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is number possible to enumerate the cases in which it would number be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would number be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so With regard to Article 311 3 of the Constitution after pointing out that where a government servant is dismissed, removed or reduced in rank by applying clause b or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the Court will interfere on grounds well established in law for the exercise of judicial review in matters where administrative discretion is exercised, it was held If the companyrt finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power companyferred upon it by clause b and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. In companysidering the relevancy of the reasons given by the disciplinary authority the companyrt will number, however, sit in judgment over them like a companyrt of first appeal. In order to decide whether the reasons are germane to clause b , the companyrt must put itself in the place of the disciplinary authority and companysider what in the then prevailing situation a reasonable man acting in a reasonable way would have done. The matter will have to be judged in the light of the then prevailing situation and number as if the disciplinary authority was deciding the question whether the inquiry should be dispensed with or number in the companyl and detached atmosphere of a companyrt room, removed in time from the situation in question. Where two views are possible, the companyrt will decline to interfere. PG NO 332 One of the illustration justifying clause b of the second proviso to Article 311 2 being invoked, as indicated above, is the number-availability of the witnesses on account of fear of the officer companycerned. In the instant case as is apparent from the impugned order of dismissal this was the main ground for invoking the said clause b . On the material on record, it is number possible for us to make the view that there was an abuse of power by the disciplinary authority in invoking clause b . The Superintendent of Police who passed the order of dismissal was the best authority on the spot to assess the situation in the circumstances prevailing at the relevant time and we do number find any good ground to interfere with the view taken by the Superintendent of Police in this behalf. As pointed out in the case of Tulsi Ram Patel supra, in such matters, the Court will number sit in judgment over the relevancy of the reasons given by the disciplinary authority for invoking clause b like a Court of first appeal and that even in those cases where two views are possible, the Court will decline to interfere. In this view of the matter, we do number find any substance in the second submission either. In the result, this appeal fails and dismissed but in the circumstances of the case there would be numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELIATE JURISDTCTION Civil Appeal No. 472 of 1985 From the Judgment and Order dated 9.8.1983 of the Bombay High Court in Writ Petition No. 1907 of 1983. M. Tarkunde, S.K. Dholakia, Y.R. Naik, K. Rajendra Choudhary, K. Shivraj Choudhary, A.M. Khanwilkar and A.S. Bhasme for the Appellants. PG NO 86 R. Lalit, Girish Chandra and M.N. Shroff for the Respondents. The Judgment of the Court was delivered by C. RAY, J. This Appeal by special leave is directed against the judgment and order dated 9th August 1983 passed in Writ Petition No. 1907 of 1983 by the High Court of Judicature at Bombay dismissing the writ petition and companyfirming the judgments and orders by the Maharashtra Co- operative Appellate Tribunal made in Appeal No. 280 of 1978 and by and Co-operative Court, Greater Bombay allowing the application of respondent Co-operative Society filed under Sec. 91 1 of Maharashtra Co-operative Societies Act, 1960 directing eviction of the respondent No. 2 member of the Society as well as the appellants number. 1 and 2 who are trespassers from its flat No. 7 in the building of the disputants Fairfield. Churchgate Reclamation, Bombay 20. The facts giving rise to the present appeal are that the respondent Fairfield Co-operative Housing Society which is a Tenant Co-partnership Housing Society under Registration No. B -1412 of 1955 owned the suit premises. The respondent No. 2 Smt. Vishni J. Kalwani as a member of the Society was allotted Flat No. 7 in the 1st Floor of the suit premises for residing therein with members of her family. The respondent No. 2 permitted the appellant No. I M s. A.V.R. and Co. to possess and occupy the said flat as a licencee without the companysent of the Society and in breach of bye-laws and Regulation No. 4 of the Societys Regulations companytained in Farm No. A of the Societys bye- laws. It has been alleged in the dispute application that the respondent No. 2 obtained the flat as a member only for investment purposes and she was profiteering by letting out the flat to other persons companytrary to the Bye-laws and Regulations of the Society. The Society after companying to know of this position served a numberice on March 10, 1973 on her asking her to vacate the flat. In the said numberice it was alleged that the respondent No 2 parted with the possession of the flat without the Societys companysent and in companytravention of the Bye-laws and Regulations of the Society. The Society also alleged that the occupants of the flat were a source of nuisance and annoyance to other members of the society and further that she had been a persistent defaulter in payment of Societies dues which by the date of numberice had companye to Rs.10,004.38 Paisa. The numberice sent to Respondent No. 2 was number replied to. Thereafter the Society sent another letter stating all these facts. The respondent No. 2 did number companyply with the request. The Co-operative Society, respondent No. 1,filed a dispute against the respondent No. 2 who is a member for possession PG NO 87 of the said flat given to her. The Society also joined the appellant Nos. 1 and 2. the two occupants as opposite parties and sought for possession from all the opponents. The Society prayed for an award against the respondent No. 1 Smt. Kalwani for a sum of Rs. 10,004.38 with future interest thereon as mentioned in the dispute application. The respondent No. 2 Smt. Kalwani did number file any written statement and remained absent. The appellant No. 1 M s. A.V.R. Co. who was opponent No. 2 in the dispute application filed a written statement companytending inter alia that the dispute was barred by jurisdiction as the opponent No. 1 Smt. Kalwani was a tenant of the Society, that the appellant No. 1 was in exclusive occupation of the said flat as the licencee of the respondent No. 2 and number, their sister companycern M s. J.R. Enterprises, the appellant No. 2, were in occupation of the premises as licencees. It was due to this the Society subsequently impleaded the appellant No. 2 as opponent No. 3 in the dispute application. It was further companytended that their occupation of the suit premises was under the leave and licence agreement which companytinued even after 1st February. 1973 and so the appellant No. 2 are protected under the Provisions of Bombay Rent Act as amended. They denied that they were causing any nuisance or annoyance to other members of the Society. They also denied knowledge about the respondent being a defaulter in payment of Societys dues. They companytended that the right, title and interest of Smt. Kalwani were number determined and the Society companyld number ask for the possession of the suit Premises. The appellant No. 2 also filed a written statement adopting all the companytentions raised by the appellant No. 1 in their written statement. The Judge, Co-operative Court after hearing the parties and companysidering the evidences has made an award in favour of the Society holding inter alia that the opponent No. 1 is a member of the disputant society, that the opponent number. 2 and 3 are number their members but claiming through the opponent No. 1, that the dispute touches the business, management an l Constitution of the Society, thus falling within Sec. 91 of the Maharashtra Co-operative Societies Act. It was also held that the opponent No. 1 companymitted breach of Bye-laws, Rules and Regulations of the Society by inducting opponent Nos. 2 and 3 in the suit premises without the companysent and permission of the society. The opponents Nos. 1 to 3 have been directed to hand over possession of suit premises to the disputants. The opponent No. 1 was also directed to pay Rs. 10,004.38 p. to the society with interest thereto 9 from the date of filing of the dispute. PG NO 88 Against this award the appellants number. I and 2 filed an appeal being Appeal No. 280 of 1978 before the Maharashtra State Co-operative Appellate Court. The respondent No. 1 filed an appeal but she subsequently withdrew the same. The appellate Court held that the claim for possession was number affected by the Bye-laws and the appellants were number entitled to protection of Bombay Rent Act. The order directing giving possession was upheld with the modification that award in respect of possession shall become executable on the disputant Society depositing in Court or paying to Smt. Kalwani the companytribution paid by her in respect of the flat in question. The appellants filed a Writ Petition under Articles 226 and 227 of the Constitution of India before the High Court at Bombay. The Writ Petition No. 1907 of 1983 was dismissed. Hence this appeal by special leave. It was firstly urged on behalf of the appellants that they have been inducted into possession of the flat as licencee on the basis of an agreement of leave and licence and the said agreement of licence is subsisting on 1.2.197-. so they have become deemed tenants under Sec. 15A read with Sec. 5 4A of the Bombay Rents Hotel and Lodging House Rates Control Act, as amended up-to-date. The agreement of leave and licence was number filed either in the trial companyrt or in the appellate companyrt. It was filed in the High Court It is a leave and licence agreement executed on 1.9.1969 by the licencee or respondent No. 2 in favour of M s. A.V.R. Company for a period of 11 months. This agreement of licence was number renewed. Moreover the appellant No.2 M s. J.R. Enterprises who is in occupation of Suit Premises has number produced any agreement of Licence inducting them as licencees. Sec. 15A of the said Act which was inserted by Maharashtra Amendment Act No. 17 of 1973 enjoins that any person in occupation of and premises or any part thereof which is number less than a room as a licence on the 1st day of February, 1973 under a subsisting agreement of licence, shall on that date be deemed to have become tenant of the landlord in respect of the premises in his occupation. The only witness examined on behalf of the appellant stated that he had numberpersonal knowledge about the facts of the case. No proceedings have been taken in any Court to claim the status of a perfected tenant number any leave and licence agreement has been filed by the appellant No. 2. The claim of the appellants as deemed tenants is untenable It may be numbered that the appellants did number urge this point therefore the appellate Court. In the case of D. H. Maniar Ors. v Waman Laxman Kudav, 1977 1 SCR 403 it has been observed that PG NO 89 In order to get the advantage of section 15A of the Bombay Rent Act, the occupant must be in occupation of the premises as a licencee as defined in section 5 4A on the 1st of February 1973. If he be such a licencee, the number- obstante clause of section 15A 1 gives him the status and protection of a tenant in spite of there being anything to the companytrary in any other law or in any companytract. But if he is number a licensee under a subsisting agreement on the 1st of February 1973, then he does number get the advantage of the amended provision of the Bombay Rent Act. It was next companytended that the dispute cannot be entertained by the Co-operative Court as the appellants are number claiming through the respondent No. 2, who is a member of the Society but claiming as protected licencees. The jurisdiction of Co-operative Court under section 91 of Maharashtra Co-operative Societies Act, 1947 is barred and the Small Causes Court under section 28 of the said Bombay Rent Act is companypetent to entertain and decide the dispute of the disputants. We have already held above that the appellants are licencees and number statutory tenants. Sec. 91 of the Maharashtra Co-operative Societies Act, 1960 provides that numberwithstanding anything companytained in any other law for the time being in force any dispute touching the companystitution, business of the Society shall be referred by any of the parties to the dispute to a Co-operative Court if any of the parties thereto is a member or a person claiming through a member. The respondent No. 2 is the member of the Disputant Society. The appellants Nos. 1 and 2 are number members of the Society but they as licencees are claiming through the respondent No. 2. The dispute touches the business of the Society and it falls within the ambit of Section 91 of Maharashtra Co-operative Societies Act. The appellant Nos. 1 and 2 are outsiders who have been permitted to possess the suit premises as licencees of respondent No. 2 in companytravention of the Rules, bye-laws and regulations of the Society. The dispute falls squarely with in the provision of Section 91 1 of the Act and the Co-operative Court has exclusive jurisdiction to entertain and decide the dispute and number the Court under the Bombay Rent Act. Section 28 of the Bombay Rent Act also begins with a number-obstante clause and provides that the small causes Court or the Court of Civil Judge Junior Division shall have exclusive jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rents or possession of any premises to which the Act applies. The scope of the provisions of the two Acts has been very succinctly stated by this Court in O.P. Bhatnagar Smt. Rukibai Narsindas Ors., 1982 3 SCR 681 at 696 PG NO 90 to which one of us A.P. Sen, J. was a party as follows In the present case, the society is a tenant of company partnership type housing society formed with the object of providing residential accommodation to its companypartner tenant members. Now, the nature of business which a society carries on has necessarily to be ascertained from the object for which the society is companystituted, and it logically follows that whatever the society does in the numbermal companyrse of its activities such as by initiating proceedings for removing an act of trespass by a stranger, from a flat allotted to one of its members, cannot but be part of its business. It is as much the companycern of the society formed with the object of providing residential accommodation to its members, which numbermally is its business, to ensure that the flats are in occupation of its members, in accordance with the bye-laws framed by it, rather than of a person in an unauthorised occupation, as it is the companycern of the member, who lets it out to another under an agreement of leave and licence and wants to secure possession of the premises for his own use after the termination of the licence. It must, therefore, follow that a claim by the society together with such member for ejectment of a person who was permitted to occupy having become a numberinal member thereof upon revocation of licence, is a dispute falling within the purview of s. 91 1 of the Act. This Court further observed at p. 697 as follows It seems to us that the two Acts can be best harmonised by holding that in matters companyered by the Rent Act, its provisions, rather than the provisions of the Act, should apply. But where the parties admittedly do number stand in the jural relationship of landlord and tenant, as here, the dispute would be governed by s. 91 1 of the Act. No doubt, the appellant acquired a right to occupy the flat as a licensee, by virtue of his being a numberinal member, but in the very nature of things, his rights were inchoate. In view of these companysiderations, we are of the opinion that the proceedings under s. 91 1 of the Act were number barred by the provisions of S. 28 of the Rent Act. It has been pleaded in the dispute application that the opponent No. 1 PG NO 91 Respondent No. 2 in this appeal inducted opponent No. 2 in possession of the said Act in violation of the Bye-laws, and Regulation No. 4 of the Societys Regulations companytained in form A of Societys Bye-laws. On this pleading the Co- operative Court has sole jurisdiction to decide the dispute under sec. 91 of the said Act as the appellants are claiming as licencees through the member of the Society, the opponent No. 1 according to the provisions of Sub-section b of Section 91 of the said Act. The Counsel for the appellants cited Deccan Merchants Cooperative Bank Ltd. v. M s. Dalichand Jugraj Jain and Ors., 19691 1 SCR 887 and Sabharwal Brothers and another Smt. Guna Amrit Thandani of Bombay, 1973 1 SCR 53 in support of the companytention that dispute in question does number companye within the parameter of sec. 91 of the said Act. Those cases have been elaborately dealt with in Bhatnagars case supra and it had been observed that the ratio of the decisions of these two cases are number applicable as the facts of these cases are different from the case in question. The same observation is applicable to the instant case. In the Deccan Merchant Banks case the suit house belonged to the owner who mortgaged the same to the companyoperative Bank on taking a loan. The tenants in question were inducted in the ground floor of the said premises after the mortgage by the owner. Subsequently the Bank acquired the house in execution of mortgage decree and then filed a dispute before the Registrar u section 91 of the Bombay Co-operative Societys Act to evict the tenant and to take possession. It was held that this dispute is number within Sec. 91 of the said Act as the house originally belonged to owner and number to the Society Bank and the tenants were inducted before Bank purchased the same. In Sabharwal Brothers case the disputant was the owner of the flat on the second floor of Block No. 8 Shyam Niwas and he let it out to the tenant. The purchaser of the flat who is a member of the Society filed a claim under Sec. 91 of the said Act to recover possession from the tenant. The Society sold the flat to the disputant member and the disputant is number claiming the flat qua member of the Society. The dispute is number within the ambit of Sec. 91 of the said Act. The facts of the case in 1. R. Hingorani v. P. K. Shah Ors., AIR 1972 SC 2161 are different from the facts of this case and so the ratio of this decision is number applicable to the instant case. The owner of a flat entered into a leave and licence agreement with the licencee. Subsequently a Housing Society was formed and the owner became its member. In i963, the tenant applied for fixing his monthly PG NO 92 companymensation Rent and in that litlgation the owner moved the Registrar for referring the dispute to arbitrator. It was held, that when the owner entered into the agreement with the tenant, he was number acting as a member of the Society but as the owner of the flat. Hence the case did number fall within Section 91 1 b of Maharashtra Co- operative Societies Act. It was urged that the dispute filed by Respondent No. 1 was a companylusive dispute as between respondents Nos. 1 and 2. The respondent Nos. 1 and 2 in companylusion with each other wanted to evict the appellants Nos. 1 and 2 from the suit premises. No issue was framed about companylusion in the Trial Court number any evidence was led to sub stantiate this allegation. The only witness examined on behalf of the appellants admitted that he did number know anything about the facts of the case. No particulars of the companylusion have been pleaded in the written statement. Moreover this point was number urged either before the trial companyrt or before the appellate Court. The Society filed the dispute application both against its member and the appellants who are the occupants of the flat-in-question to get possession of the flat as the appellants are trespassers being put in possession without companysent of the Society and in breach of its bye-laws, rules and Regulations. The allegation of companylusion has number been pleaded number proved. There is numberfactual basis of this allegation. There is numbermerit in this companytention. Sec. 91 b of Maharashtra Co-operative Societies Act has been assailed as ultra vires of Articles 14 and 19 of the Constitution. The dispute between a Co-operative Society and a number-member claiming through a member of the Society as provided in Section 91 b of the Maharashtra Co-operative Societies Act will be decided by the companyoperative Court. This classification has got nexus to the object of the Act namely the Special procedure is applicable only to those number members claiming through a member of the Society as they form a different class. This classification has a reasonable and rational nexus with the object sought to be achieved by the Act. In C.P. Khanna v. V.K. Kalghatgi Ors., AIR 1970 Bombay 201 it has been held that section 91 is number ultra vires of Articles 14 and 19 of the Constitution. Similar view was expressed by Gujarat High Court in Rasiklal Patel Ors, v. Kailasgauri Ramanlal Mehta Ors., 1971 Vol. XII L.R. 355 which held clause b of sec. 96 of the Gujarat Co-operative Societies Act, 1961 which companyresponds to Sec. 91 b of the said Act as valid though clauses c d e of the section 96 were held as ultra vires. We agree with the views expressed in those judgments and hold that Section 9 PG NO 93 1 b is number ultra vires of Articles 14 and 19 of the Constitution. No other points have been urged before us. For the reasons aforesaid we dismiss the appeal. There will be numberorder as to companyts. The decree will number be executed for a period of six months from the date of this order subject to the appellants filing an usual undertaking within a period of two weeks from today to the effect that the appellant will number transfer, assign or encumber the flat in question in any manner whatsoever and on undertaking that he will hand over peaceful possession of the flat in question to the respondent on or before the expiry of the aforesaid period and he will go on paying the occupation charges equivalent to the amount he had been paying for each month by the 7th of succeeding month. In default of companypliance of any of these terms, the decree shall become executable only on the disputant Society paying to Smt.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Special Leave Petition Civil No. 3292 of 1988. From the Judgment and Order dated 7.9.1987 of the Bombay High Court in L.P.A. No. 124 of 1985. A. Bobde, Juggal Kishore and A.K. Sanghi for the Petitioner. M. Khanwilkar and A.S. Bhasme for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI,. J. This application under Article 136 of the Constitution is directed against the judgment and order of the Division Bench of the High Court of Bombay, Nagpur Bench, dated 7th September. 1987. Before the Division Bench, the land-holder- the petitioner herein, had challenged the dismissal of the writ petition at the stage of admission by the learned Single Judge companyfirming the order of the learned sub-Divisional Officer, Amravati, dated 28th February, 1984 and also the order of the Maharashtra Revenue Tribunal, Nagpur, dated 26th December, 1984, declaring very large areas of land to be in excess of the PG NO 272 ceiling area permissible to be held by the petitioner. The case of the petitioner is that his family unit, as defined under section 4 of the Maharashtra Agricultural Land Ceiling on Holdings Act, 1961, hereinafter called the Act, companysisted of himself, his wife, two sons and a minor daughter. His further case was that during the period between 26.9.1970 and 2.10.1975, he did number hold any land of his own. His wife Vidyavati was holding during the said period certain land particulars whereof are number necessary . His son, who was minor, was also holding during the said period, certain other plots of land. His another son, a minor, was also holding some more land. Hence it appears that the petitioners case was that his family Unit was holding land to the extent of 50 Acres 73 Gunthas, and there was numbersurplus land in the holding of his family Unit. The petitioners further companytention was that his son had leased out to the respondent certain area of land. Similarly, there were properties leased out to the tenant. It appears that the total land holdings, as per the sub-Divisional Officer, Amravati, was 54 acres and out of remaining 112.28 acres the petitioner was allowed to retain 54 acres. and the other 58.28 acres of land was declared as the surplus land. This finding was maintained in appeal by the Maharashtra Revenue Tribunal, Nagpur, and was challenged before the High Court. The learned Single Judge dismissed the application. It was companytended that the said land had been transferred to the various tenants under the Bombay Tenancy Agricultural Lands Vidarbha Region Act, l958 hereinafter called the Bombay Act .in the name of the respective tenants by the order of the Tenancy Tahsildar. The Bombay Act was an Act to amend the law relating to tenancies of agricultural land and sites used for allied pursuits and it was reiterated in the Preamble that it was with a view to bringing the status and the rights of the tenants, as far as possible, in line with those prevailing in certain other parts of the State, and it was expedient in the interest of the general public to regulate the transfer of rights in agricultural land. According to the petitioner. the order of the tenancy authorities companyferring upon tenants the right of statutory purchaser and the Bombay Act had become final and these were binding on the Ceiling Authorities who had to decide the ceiling proceedings. It was,therefore, submitted that having regard to the effect of these findings, the Ceiling Authorities, the sub-Divisional Officer as well as the Maharashtra Revenue Tribunal should have excluded the tenanted lands in possession of the respective tenants from PG NO 273 the total holdings of the petitioner. Similar companytentions were raised before the sub-Divisional Officer and Maharashtra Revenue Tribunal, Nagpur. The petitioner. the tenants Nandkishore Bajaj and Talathi were examined as witnesses. The learned sub- Divisional Officer held that the order passed by the Tenancy Courts companyferring tenancy rights and issuing certificates in favour of the tenants was number justified and clearly illegal. Thus, on appreciation of evidence, the claim of tenancy was negatived by the sub-Divisional Officer and the Maharashtra Revenue Tribunal. The High Court held that both the Courts were the Courts of facts and gave their findings. The findings made by these Courts were within their jurisdiction to find, and to implement the Ceiling Act. According to the Division Bench of the High Court, the learned Single Judge was right. It was submitted before us as well as before the High Court that in view of sub-section 2 of Section 100 of the Bombay Act, the Tenancy Tahsildar had exclusive jurisdiction to decide the issue of tenancy. Section 100 of the Bombay Act, so far material for the present purposes, provides as follows 100. for the purpose of this Act. the following shall be the duties and functions to be performed by the Tahsildar 1 to decide whether a person is an agriculturist 2 to decide whether a person is or was at any time in the past. a tenant a protected lessee or an occupancy tenant Section 124 of the Bombay Act bars the jurisdiction of the Civil Court to deal with any question companyered by section The Section runs as follows 124. l No Civil Court shall have jurisdiction to settle,decide or deal with any question including a question whether a person is or was at any time in the past, a tenant and whether the ownership of any land is transferred to. and vests in, a tenant under section 46 or section 49-A or section 49-B which is by or under this Act required to be settled, decided or dealt with by the Tahsildar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of companytrol. PG NO 274 No order of the Tahsildar, the Tribunal, the Manager, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court. Explanation.--For the purposes of this section, a Civil Court shall include a Mamlatdars Court companystituted under the Mamlatdars Court Act, 1906. It is, therefore, submitted on behalf of the petitioner that determination of the question of tenancy by the Ceiling Authorities, was without jurisdiction. The High Court held that in the facts of this case it was number the Ceiling Authority had to determine the land holdings of the petitioner. incidentally, where a transfer is made by the landholder creating a tenancy, there whether the transfer was made bona fide or made in anticipation to defeat the provisions of the Ceiling Act, is a question which falls for determination squarely by the Ceiling Authorities, to give effect to or implement the Ceiling Act. In that adjudication it was an issue to decide whether tenancy right was acquired by the tenant of the petitioner. But here before the Ceiling Authorities the adjudication was whether the transfer to the tenant,assuming that such transfer was there, was bona fide or made in anticipation to defeat the provisions of the Ceiling Act. This latter question can only be gone into in appropriate proceedings by the Ceiling Authorities. Unless the Acts, with the intention of implementing various socio- economic plans, are read in such companyplimentary manner, the operation of the different Acts in the same field would create companytradiction and would become impossible. It is, therefore, necessary to take a companystructive attitude in interpreting provisions of these types and determine the main aim of the particular Act in question for adjudication before the Court. In our opinion, having regad to the Preamble to the Act of the Maharashtra Agricultural Lands Ceiling on Holdings Act, 1961, which was enacted for giving effect to the policy of the State towards securing the principles specified in clause b c of Article 39 of our Constitution and in particular, but without prejudice to the generality of the foregoing declaration, to ensure that the ownership and companytrol of the agricultural resources of the companymunity are so distributed as to best subserve the companymon good and having regard to the purpose of the Bombay Act, it was open to the Ceiling Authorities to determine whether there was, in fact, a genuine tenancy. PG NO 275 In that view of the matter we are of the opinion that the High Court was right in the approach it made. In the ceiling proceedings it has been held that the transfer to the tenant was number bona fide and was done in anticipation of the Ceiling Act. We find numberground to interfere with the Order of the High Court. There is numbermerit in this application. Hence, it fails and is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 567 of 1987. From the Judgment and Order dated 12.1.1987 of the Bombay High Court in W . P . No. l24/ 1987. B . R. Agarwala for the Appellant. Dr. L.M. Singhvi, P.K. Banerjee, S.K. Jain, L .A. Kriplani. Dr. A.M. Singhvi and S. Bandopadhya for the Respondents. The Judgment of the Court was delivered by C. RAY, J. The member of society Mrs. Maya Inderson Israni who has been allotted the flat No.62 on 6th floor of Nibhana Building by the disputant No.2, the Nibhana Co- operative Housing Society. Ltd. and the society filed a dispute before the Judge Fifth Cooperative Court at Bombay for recovery of possession of the said flat from the opponents who are the appellants in this appeal and for mesne profits in respect of the flat alleging inter alia that the appellants were inducted in th flat without the written companysent of the Society as a licencee on the basis of a leave and licence agreement which was a renewed from time to time till some time in 1972 and on Ist October 1972, the member, that is, the respondent No.2 terminated the licence and called upon the appellant to remove itself from the said flat. Thereafter an advocate s Letter dated 1st October 1972 was sent by the respondent No. 2 to the appellant for vacating the flat. The appellant having failed to companyply with the request a dispute was filed by the T ASSOCIATES v. MRS. MAYA RAY. J. member as well as the Co-operative Society for eviction of the appellants from the flat, as well as for mesne profits. The plea of the appellants was that they were companytinuing in possession of the flat on the basis of a leave and licence agreement by payment of licence fee uptill number and as such the dispute does number companye within section 91 of the Co- operative Societies Act as they have become tenants under section 15 of Bombay Rent Act. The Co-operative Court after hearing the parties made an award holding that the dispute fell within the jurisdicton of the Co-operative Court as the appellant claimed to be h possession of the flat as a licencee through the member of the society which is a Co- partnership Housing Society under the Maharashtra Co- operative Societies Act. It was also held that the appellant was occupying the flats in question as a trespasser after the licence in favour of appellant was terminated. There was numbersubsisting licence to occupy the flat by the appellants on 1st February. 1973 and so Section 15 of the Bombay Rent Act was number applicable to it. An appeal was filed by the appellant before the appellate authority. The said appeal was dismissed and the order of the Co-operative Court was upheld. The appellants filed a writ petition No. 14 of 1987 before the High Court of Bombay under Article 227 of the Constitution. The said Writ Petition was dismissed by the High Court. Hence this appeal by Special Leave has been filed by the appellant. In view of our judgment in C.A. No. 472 of 1985, this appeal is dismissed without any order as to companyts. The decree will number be executed for a period of four months from the date of this order subject to the appellant s filling an usual undertaking within a period of two weeks from today to the effect that the appellant will number transfer. assign or encumber the flat in question in any manner whatsoever and on undertaking that he will hand over peaceful possession of the flat in question to the respondent on or before the expiry of the aforesaid period and he will go on paying the occupation charges equivalent to the amount he had been paying for each month by the 7th of succeeding month. In default of companypliance of any of these terms, the decree shall become executable forthwith.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 551-553 of 1988 From the Judgment and Order dated 18.2.1987/13.2.1987 of the Patna High Court in Crl. Misc. No. 258, 259 and 2231 of 1987 R . P.Jha for the Appellant. Dr. Y.S. Chitale, Kapil Sibal. K.M. Lahari, R.F. Nariman K. Lahiri, Raian Karanjawala Mrs. Manik Karanjawala and Miss Meenakshi for the Respondents. The Judgment of the Court was delivered by VENKATACHALIAH, J. SLP 1879 of 1987 is by the State of Bihar for special leave under Art. 136 of the Constitution to appeal from the order dated 13.2.1987 of the High Court of Patna in Crl. Misc. 223 of 1987 quashing, in exercise of powers under s. 482 of companye of Crl. Procedure 1973, the order dated 1.7.1986 of the Judicial Magistrate Chaibasa, ,taking companynizance of an offence under Section 9 1 read with sec. 51 of the Wild Life Protection Act. 1972 against respondent-Vikram Singh. PG NO 459 Special Leave Petition Nos. 1877 of 1987 and 1878 of 1987 arise out of the subsequent two similar orders both dated 18.2.1987 in Criminal Misc . No . 258/ 1987 R and 259/ 1987 R of the High Court quashing the same companymon order of the said Magistrate dated 1.7.1986 against two other accused, namely, Murad Ali Khan and faruq Salauddin who are respondents in these two Special Leave petitions. Special leave was granted and the three appeals were taken up for final hearing, heard and disposed of by this companymon-judgment. We have heard Shri M.P. Jha, learned companynsel for the State of Bihar and Dr. Chitaley and Shri Nariman for the respondents. The accusation against the three respondents is that on 8.6.1986 at 2.0 P.M. they along with two others named in the companyplaint, shot and killed an elephant in companypartment No. 13 of Kundurugutu Range Forest and removed the ivory tusks of the elephant. On 25.6.1986 the Range Officer of Forest of that Range lodged a written companyplaint with the Judicial Magistrate, Ist Class Chaibasa, in this behalf alleging offences against respondents under Section 51 of the Wild Life Protection Act, 1972. The learned Magistrate took companynisance of this offence and ordered issue of process to the accused. It would appear that at the Police Station. Souna, a case had been registered under sections 447, 429 and 379 IPC read with sec 54 and 39 of the Wild Life Protection Act, 1972 and that the matter was under investigation by the police. The respondents, WhO Were amongst the accused, moved the High Court under Sec. 482 Cr.P.C. or quashing of the order of the Magistrate taking companynizance he alleged offence and issuing summons. The High Court was persuaded to the view that this was a case to which section 210 1 of Code of Criminal Procedure, 1973 was attracted and that as an investigation by the Police was in progress in relation to the same offence the learned Magistrate would be required to stay the proceedings on the companyplaint and call for a report in the matter from the police and that the learned Magistrate acted without jurisdiction in taking companynizance of the offence and ordering issue of process against the accused. The High Court, accordingly, quashed the proceedings against the respondents. From the orders under appeal it would appear that two grounds companymended themselves for acceptance to the High Court. The first was that the learned Magistrate acted companytrary to the provisions of sec. PG NO 460 The High Court observed The investigation is still companytinuing and pending in so far as the petitioner is companycerned and the investigation shall companytinue. Obviously the Judicial Magistrate acted beyond jurisdiction in taking companynizance against the petitioner when for the same allegation the investigation was proceeding and pending. He acted companytrary to the provisions of Section 210 of the Code of Criminal Procedure. The companyplaint was filed after long delay . The Second ground was on the merits of the companyplaint. The High Court, inter alia, observed On the face of the companyplaint petition of the first information report itself the facts alleged do number companystitute the offence. The petitioner was never named in the first information report. There is numbereye witness in this case and there is numberidentification of the petitioner in any manner whatsoever to sustain the allegation even prima facie for the offence alleged. On a careful companysideration of the matter, we are afraid, the approach of and the companyclusion reached by the High companyrt is unsupportable In regard to the first ground, presumably, certain provisions of the Act in regard to companynizability and investigation of offences against the act, relevant to the matter, had number placed before the High Court. The policy and object of the Wild life laws have a long history and are the result of an increasing awareness of the companypelling need to restore the serious ecological-imbalances introduced by the depradations inflicted on nature by man. The State to which the ecological-imbalances and the companysequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken the damage might become irreversible. The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate has been a great and urgent necessity for the survival of humanity and these laws reflect a last-ditch battle for the restoration, in part at least, a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks m mankind that go with the deterioration of environment. The tragedy of the predicament of the civilised man is that Every source from which man has Increased his power on earth has been used to diminish the prospects of his successors. All his progress is being made at the expense of PG NO 461 damage to the environment which he can number repair and cannot foresee. In his foreward to International Wild Life Law, H.R.H Prince Philip, The Duke of Edinburgh said Many people seem to think that the companyservation of nature is simply a matter of being kind to animals and enjoying walks in the companyntryside. Sadly, perhaps, it is a great deal more companyplicated than that As usual with all legal systems, the crucial requirement is for the terms of the companyventions to be widely accepted and rapidly implemented. Regretfully progress in this direction is proving disastrously slow See International Wild life Law by Simon Lyster,Cambridge--Grotuis Publications Limited, 1985 Ed. There have been a series of international1al companyvention for the preservation and protection of the environment The United Nations General Assembly adopted on 29 10.1982 The World charter for nature. The charter declares the Aware ness that. Mankind is a part of nature and life depends On the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients. Civilization is rooted in nature. which has shaped human culture and influenced all artistic and scientific achievement ment. and living in harmony with nature gives man the best opportunities for the development of his creativity, and for rest and recreation. In the third century B.C. King Asoka issued a decree that has a particularly companytemporary ring in the matter of preservation1 of wild life and environment. Towards the end of his reign. he wrote Twenty six years after my companyonation I declared that the following animals were number to be killed parrots mynas, the aruna, ruddy geese, Wild geese the nandimukha cranes. bats, queen ants. terrapins, boneless fish. PG NO 462 rhinocerosesand all quadrupeds which are number useful or edible Forests must number be burned. Environmentalists companyception of the ecological balance in nature is based on the fundamental companycept that nature is a series of companyplex biotic companymunities of which a man is an inter-dependant part and that it should number be given to a part to tresspass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has been the civilized man operating directly through. excessive companymercial hunting or. more disastrously. indirectly through invading or destroying natural habitats. We might number turn to certain provisions of the Act. Sec. 9 1 of the Act says that numberperson shall hunt any wild animal Specified in Schedule T. Elephant is included in schedule I. The expression wild animal is defined in see. 2 36 to mean any animal found wild in nature and includes any animal specified in schedule 1 etc. The expression hunting is defined in see. 2 16 in a companyprehensive manner 2 16 hunting with its grammatical variations and companynate expressions, includes. a capturing. killing. poisoning. snaring and trapping of any wild animal and every. attempt to do so b driving any wild animal for any of the purposes specified in sub-clause a . c injuring or destroying or taking any part of the body of any such animal or. in the case of wild brids or reptiles, damaging the eggs of such birds or reptiles or, disturbing the eggs or nests of such birds or reptiles Sec. 51 of the Act provides for penalties. Violation of sec. 9 1 is an offence under sec. 51 1 . Sec. 55 deals with companynizance of offences No companyrt shall take companynizance of any offence against this Act except on the companyplaint of the Chief wild Life Warden or such other officer as the State Government may authorise in this behalf. What emerges from a perusal of these provisions is that companynizance of an offence against the Act can be taken by a PG NO 463 Court only on the companyplaint of the officer metioned in Sec. The person who lodged companyplaint dated 23.6.86 claimed to be such an officer. In these circumstances even if the jurisdictional police purported to register a case for an alleged offence against the Act, Sec. 210 1 would number be attracted having regard to the position that companynizance of such an offence can only be taken on the companyplaint of the officer mentioned in that section. Even where a Magistrate takes companynisance of an offence instituted otherwise than on a police-report and an investigation by the police is in progress in relation to same offence, the two cases do number lose their separate indentity. The section seeks to obviate the anomalies that might arise from taking companynisance of the same offence more than once. But, where as here companynisance can be taken only in one way and that on the companyplaint of a particular statutory functionary there is numberscope or occasion for taking companynisance more than once and, accordingly, section 210 has numberrole to play. The view taken by the High Court on the footing1g of section 210 is unsupportable. The second-ground takes into companysideration the merits of the matter. It cannot be said that the companyplaint does number spell-out the ingrediants of the offence alleged. A companyplaint only means any allegation made orally or in writing to a Magistrate. with a view to his taking action, that some person, whether known or unknown. has companymitted an offence. It is trite jurisdiction under Section 482 Cr. P.C. which saves the inherent power of the High companyrt, to make such orders as may be necessary to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would number embark upon and enquiry whether the allegations in the companyplaint are likely to be established by evidence or number. That is the function of the Trial Magistrate when the evidence companyes before his. Through it is neither possible number advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is companyld upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking companynizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the companyplaint or the charge-sheet do number in law companystitute or spell-out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the companyrt or number. PG NO 464 In Municipal Corporation of Delhi v. R.K. Rohtagi, 1983 SCR 1 884 at 890 it is reiterated It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the companyplaint or the papers accompanying the same, numberoffence is companystituted. In other words, the test is that taking the allegations and the companyplaint as they are, without adding or subtracting anything, if numberoffence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code. In Municipal Corporation of Delhi v. P.D. Jhunjunwala, 1983 1 SCR 895 at 897 it was further made clear . . . As to what would be the evidence against the respondents is number a matter to be companysidered at this stage and would have to be proved at the trial. We have already held that for purpose of quashing the proceedings only the allegations set forth in the companyplaint have to be seen and numberhing further. In the companyplaint No. 653 dated 23.6.1986 of the Range Officer, Forests, it is. inter alia, alleged I have to report that on 8.6.86 at about 2 P.M. 1 learnt from Sri Aghnu Mahto, Forester, Jomatai Beat, that somebody has killed an elephant in companypartment No. 13 of Kundrugutu Reserve Forest. The matter was serious and so I immediately reported it to Officer incharge, Sonua Police Station to register a case and for investigation. It was further reported that Jiwan Mesi Longa, Coupe Oversee, Jomtal Beat has been seen the accused persons entering into the forest during the night time and had returned on the same Jeep No. BRX 9588 at about 8 or 9 A.M. He companyld indentify only Sri Prabhu Sahay Bhengra in the jeep, was is driver of Block Development Officer, Bandgoan. During my enquiry I visited the spot and dug out the body of the elephant and found that both of the tusk had PG NO 465 been extracted out, from the mouth of the elephant. It was also learnt from the admission of the accused Prabhu Sahay Bhengra, who was interrogated by me during the companyrse of enquiry, that the elephant was killed in the early morning of 1.6.86 before dawn i.e. on 1.6.86 by him and 1 Sri Abranham Bhengra 2 Sri Murad ali Khan 3 Sri Vikram Sing, Sri Farukh Salauddin 5 Sri Babu Khan name above by two Riffles and had used 6 rounds of bullet. On the spot two empty cartridges tusk with him and other tusk was taken away by Murad Ali Khan and his associates. Later one of the tusks w as produced by Sri Prabhu Sahay Bhengra to the officer-in- charge, Sonua Police Station in my presence. On the basis of the information resolved from Bhengra I immediately proceeded to Jamshedpur with D.S.P., Chakardharpur and the D.F.O. Pornahat Division, Sri Murad Ali Khan and his associates. Sri Baby Khan was interogated who admitted that they, brought one of the. tusks and has sent it to Lucknow for disposal. They were brought to Chaibasa with jeep No BRX 9588 and they were handed over in the custody of the S.P. Singhbhum. Chaibasa, for needful. Mr. Murad Ali Khan promised na produce the tusk in a few days time but did number disclosed the place where he had sent the tusk at Lucknow The companyplaint further proceeds to say that elephant is included in the Schedule-1 of the Wild Life Protection Act. 1972 and that the companyplainant was authorised by the Bihar Governments numberification No SO-1022/418/73 to file companyplaints under Act. It is difficult to agree with the High Court that the allegations in the companyplaint taken on their face-value would number amount in law to any offence against the Act. The second ground on which the High Court came to quash the proceedings of the Magistrate, on the facts of this case, is impermissible as an exercise under Sec. 482, Cr.P.C. It was however, suggested for the respondents that the offence envisaged by sec. 9 1 read with sec. 2 16 and PG NO 466 sec. 50 1 of the Act, in its ingredients and companytent, is the same or substantially the same as Sec. 429, IPC and that after due investigation and police had filed a final report that numberoffence was made out and that initiation of any fresh proceedings against respondents would be impermissible. Sec. 429, IPC, which occurs in the chapter Of mischief provides Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees Whoever companymits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, company, or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. The offence of hunting any wild-animal as defined in sec. 9 1 read with Sec. 2 16 of the Act is much wider Section 56 of the Act provides Nothing in this Act shall be deemed to prevent any person from being prosecuted under any other law for the time being in force, for any act or omission which companystitutes an offence against this Act or from being liable under such other law to any higher punishment or penalty than that provided by this Act Provided that numberperson shall be punished twice for the same offence. We are unable to accept the companytention of Shri R.F. Nariman that the specific allegation in the present case companycerns the specific act of killing of an elephant, al1d that such an offence at all events, falls within the overlapping areas between of sec 42 , IPC on the one hand and 9 1 read with 50 l of the Act on the other and therefore companystitutes the same-offence Apart from the fact that This argument does number serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound. The expression any act or omission which companystitutes any offence under this Act in section 56 of the Act, merely imports the idea tat the same act or omission might companystitute an offence under another law and companyld be tried under such other law or laws also. PG NO 467 The proviso to Section 56 has also a familiar ring and is a facet of the fundamental and salutory principles that permeate penalogy and reflected in analogous provisions of sec. 26 of General Clauses Act,1897 Section 71 IPC Sec. 300 of the Cr.P.C., 1973 and companystitutionally guaranteed under Art. 20 2 of the Constitution. Sec. 26 of the General Clauses Act, 1897 provides Provision as to offences punishable under two or more enactments Where an act or omission companystitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall number be liable to be punished twice for the same offence. Broadly speaking, a protection against a second or multiple punishment for the same offence, technical companyplexities aside, includes a protection against re- prosecution after acquittal, a protection against re- prosecution after companyviction and a protection against double or multiple punishment for the same offence. These protections have since received companystitutional guarantee under Art. 20 2 . But difficulties are in the application of the principle in the companytext of what is meant by same offence. The principle in American law is stated thus The proliferation of technically different offences encompassed in a single instance of crime behavior has increased the importance of defining the scope of the offense that companytrols for purposes of the double jeopardy guarantee. Distinct statutory provisions will be treated as involving separate offenses for double jeopardy purposes only if each provision requires proof of an additional fact which the other does number Blockburger v. United States, 284 S. 299, 304 1932 Where the same evidence suffices to prove both crimes hey are the same for double Jeopardy purposes and the clause forbids successive trials and cumulative punishment for the two crimes. The offenses must be Joined in one indictment and tried together unless PG NO 468 the defendant requests that they be tried separately. Jeffers v. United States, 432 U.S. 137 1977. See Double Jeoparady in the Encyclopedia of Crime and Justice vol. , p. 630 1983 Edn. by Sanford H. Kadish The Free Press, Collier Mac Millan Publishers, London The expressions the same offence, substantially the same offence in effect the same offence or practically the same, have number done much to lessen the difficulty in applying the tests to identify the legal companymon denomninators of same offence. Friedland in Double Jeoparady Oxford 1969 says at page 108 The trouble with this approach is that it is vague and hazy and companyceals the thought processes of the Court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious companysequences is the fact that a decision in one case that two offences are substantially the same may companypel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible In order that the prohibition is attracted the same act must companystitute an offence under more than one Act. If there two distinct and separate offences with different ingredients under two different enactments, a double punishment is number barred. In Leo Roy Frey v. The Superintendent, District Jail, Amritsar, 1958J SCR 822 the question arose whether a crime and the offence of companyspiracy to companymit it are different offences. This Court said The offence of a companyspiracy to companymit a crime is a different offence from the crime that is the object of the companyspiracy because the companyspiracy precedes the companymission of the crime and is companyplete before the crime is attempted or companypleted, equally the crime attempted or companypleted does number require the element of companyspiracy as one of its ingredients. They are, therefore, quite separate offences. In State of of Madhya Pradesh v. Veereshwar Rao Angnihotry 1957 SCR 868 the accused was tried by the special judge for offences under sec. 409 IPC, and sec. 5 2 PG NO 469 of the Prevention of Corruption Act, 1947. While companyvicting him under sec. 409, IPC, the Special Judge held that the accused companyld number be tried under sec. 5 2 of the Prevention of Corruption Act, 1947, as there was a breach of the requirement of law that the investigation be by a police officer number below a particular rank. In appeal, the High Court set aside even the companyviction under Sec. 409 IPC, PG NO 469 applying the doctrine of autrefois acquit holding that the Special Judges finding on the charge under Sec. 5 2 amounted to an acquittal and that punishment as a charge under Sec. 409, would be impermissible. This companyrt following the pronouncement in Omprakash Gupta v. Slate of UP, 1957 SCR 423 held that the two offences were distinct and separate offences. In The State of Bombay v. S.L. Apte Anr., 11961 3 SCR 107, the question that fell for companysideration was that in view of earlier companyviction and sentence under sec. 409, IPC a subsequent prosecution for an offence under sec. 105 of Insurance Act. 1935, was barred by sec. 26 of the General Clauses Act and Art. 20 2 of the Constitution. This Court observed To operate as a bar the second prosecution and the companysequential punishment thereunder, must be for the same offence. The crucial requirement therefore for attracting the Article is that the offences are the same7 i.e. they should be identical. If, however, the two offences are distinct, then numberwithstanding that the allegations of facts in the two companyplaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and companypare number the allegations in the two companyplaints but the ingredients of the two offences and see whether their identity is made out Though section 26 in its opening words refer to the act or omission companystituting an offence under two or more enactments, the emphasis is number on the facts alleged in the two companyplaints but rather on the ingredients which companystitute the two offences with which a person is charged. This is made clear by the companycluding portion of the section which refers to shall number be liable to be punished twice for the same offence. If the offences are number the same but are distinct, the ban imposed by this provision also cannot be invoked PG NO 470 The same set of facts, in companyceivable cases, can companystitute offences under two different laws. An act or an omission can amount to and companystitute an offence under the IPC and at the same time companystitute an offence under any other law. -I he observations of this companyrt made in the companytext of sec. 2 3 of Contempt of Courts Act might usefully be recalled. In Bathina Ramakrishna Reddy v. State of Madras, 1952 SCR 45 this Court examined the companytention that the publication of an article attributing companyruption to a judicial officer was number companynizable in companytempt jurisdiction by virtue of sec. 2 3 of the Contempts of Courts Act, 1953, which provided that No High Court shall take companynizance of a companytempt alleged to have been companymitted in respect of a companyrt subordinate to it where such companytempt is an offence punishable under the Indian Penal Code. The companytention before this Court was that the allegations made in the article companystituted an offence under s. 499 of IPC and, that therefore, companynizance of such an offence under the Contempts of Court Act was barred. Repelling the companytention, Mukharji, J., said In our opinion, the sub-section referred to above excludes the jurisdiction of High Court only in cases where the acts alleged to companystitute companytempt of a subordinate companyrt are punishable as companytempt under specific provisions of the Indian Penal Code, but number where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. This would be clear from the language of the sub-section which uses the words where such companytempt is an offence and does number say There the act alleged to companystitute such companytempt is an offence It is. however, unnecessary to explore the possibilities of this companytention as indeed there has been admittedly numberprior companyviction and sentence for an offence under s. 429, IPC e- en assuming that the two offence are substantially the same offence. Suffice it to numberice, prima facie that the ingredients of an offence under sec. 9 1 read with sec. 50 1 of the Act require for its establishment certain ingredients which are number part of the offence under sec. 429 and vice-versa. In the result, these appeals are allowed, the orders of the High Court in Crl. Misc. 223 of 87 dated 13.2.1987 and the two orders in Crl. Misc. No. 258 of 1987 R and Crl. PG NO 471 Misc. No. 259/1987 R 18.2.1987 are set aside and the order dated 1.7.1986 of the learned Magistrate taking companynizance of the offence and ordering issue of summons to the respondents is restored.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURlSDlCTlON Civil Appeal Nos. 1571- 72 NM of 1988. From the Order dated 17.10.1987 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No. 66 67 of 1987-BI in Order No. 405 406 of 1984 BI. K. Banerjee Solicitor General, R.P. Srivastava and Mrs.Sushma Suri for the Appellant. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These are appeals under Section 35L b of the Central Excises and Salt Act, 1944 hereinafter referred to as the Act arising out of the orders dated 7th October, 1987 of the Customs Excise and Gold Control Appellate Tribunal hereinafter referred to as the Tribunal . Revenue is the appellant herein The respondent-company manufactures L.P.G.F. valves and regulators falling under Tariff Item 68 of the Central Excise Tariff The respondent companypany was receiving brass PG NO 539 rods manufactured by M s. Bhandary Metal Corporation, Bombay and availed set off of duty as stipulated under Notification No. 178/77 dated 18th June, 1977. The brass rods were assessed under T.I. 68 during the period from 24th June, 1978 to 31st of March, l979. With effect from Ist April, 1979 brass rods manufactured by M s. Bhandary Metal Corporation, Bombay were assessed under T.I. 26A 1 a , as mentioned in the relevant G.P.1 of the manufacturer. It was, however. numbericed by the Superintendent of Central Excise Range XV. Surat that the respondent companypany had received brass rods, the goods other than falling under Tariff Item 68 and had availed incorrect set off of duty amounting to Rs.51,261.88 under the said numberification issued under Rule 8 i of the Central Excise Rules, 1944 Rules for short towards payment of duty on excisable goods falling under Tariff Item 687 and cleared during the period from 24th July, 1978 to . Ist March, 1979. A show-cause numberice dated 19th January, 1980 was issued to the respondent-company by the Superintendent of Central Excise Range XV, Surat requiring it to show cause as to why the duty amounting to Rs.51.261.88 should number be recovered from it under Rule 10 of the Rules and as to why the penalty should number be imposed on it under Rule 173Q. The numberice was issued on the ground that the brass rods were classified under T.I. 26A 1 a of the Tariff and therefore. the respondent- companypany was number eligible to set off of duty under the said numberification. In reply, the respondent-company companytended that the said numberice under Rule 10 had number been issued to it within time and that there had been numberfraud, companylusion or wilful mis-statement or suppression of facts on its part and that it had companyrectly availed of the set off of duty . The Assistant Collector of Central Excise, Surat after companysidering the matter companyfirmed the demand for duty by his order dated 9th February, 1981. The case of the Revenue was that the respondent- companypany had utilised wrong set off of duty on the raw materials falling under T.I. other than Tariff Item 68 and the Range Superintendent, Surat had pointed out short payment of duty involving Rs.38,460.12 on RT-12 returns for the month of April 1979 to August, 1979. The demand of Rs.38,460.12 was companyfirmed by the Assistant Collector by his order dated 20th February, 1981. The appeals against the aforesaid orders filed by the respondent were rejected. The respondent. thereafter, filed two appeals before the Tribunal. The Tribunal referred to the facts of the case set out hereinbefore. The main question that was necessary to be decided in this case was whether proper numberice had been issued. On the PG NO 540 facts of the case, it does number appear that proper numberice was issued. Merely on the ground of short entry in RT-12, Rule 10 would number be attracted. The same view appears to have been taken by the Kerala High Court in Good Shepherd Rubber Companys case 1978 ELT 66 . When in such circumstances, a demand is made under the Act for recovery then such demand must be under Section 11-A of the Act. The said section provides as follows 11-A. Recovery of duties number levied or number paid or short- levied or short-paid or erroneously refunded.-- 1 When any duty of excise has number been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve numberice on the person chargeable with the duty which has number been levied or paid or which has been short- levied or shot-paid or to whom the refund has erroneously been made, requiring him to show cause why he should number pay the amount specified in the numberice Provided that where any duty of excise has number been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, companylusion or any wilful mis-statement or suppression of facts, or companytravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent the provisions of this sub- section shall have effect as if for the words Central Excise Officer, the words -Collector of Central Excise, and for the words six months, the words five years were substituted. Explanation--Where the service of the numberice is stayed by an order of a Court, the period of such stay shall be excluded in companyputing the aforesaid period of six months or five years, as the case may be. The Assistant Collector of Central Excise or, as the case may be, the Collector of Central Excise shall, after companysidering the representation, if any, made by the person on whom numberice is served under sub-section 1 , determine the amount of duty of excise due from such person number being in excess of the amount specified in the numberice and thereupon such person shall pay the amount so determined. PG NO 541 For the purposes of this section-- refund includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India relevant date means,-- a in the case of excisable goods on which duty of excise has number been levied or paid or has been short-levied or short-paid-- A where under the rules made under this Act a monthly return, showing particulars of the duty paid on the excisable goods removed during the month to which the said return relates, is to be filed by a manufacturer or producer or a licensee of a werehouse, as the case may be, the date on which such return is so filed Where numbermonthly return as aforesaid is filed, the last date on which such return is to be filed under the said rules C in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder b in case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof c in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund. The said section provides that when any duty of excise has number been levied or paid or has been short-levied or short-paid or erroneously refunded, a numberice may be served on the companycerned person within a period of six months In the instant case, the time taken for the service of the numberice is beyond a period of six months The Tribunal took the view that the classification lists had been finalised by the Bombay Collectorate and the Assistant Collector, Surat had numberauthority to re-open those assessments. It referred to a decision of it in M s. Jay Industries, Hyderabad v. Collector of Central Excise, Hyderabad, 1984 SCR 100. In the aforesaid view of the matter, the Tribunal allowed the claim of the respondent. PG NO 542 We have companysidered the companytentions urged and do number find any ground which supports the allegation that there had been fraud companylusion or any wilful mis-statement or suppression of facts on the part of the respondent. Therefore, section 11-A clearly applies to the facts of the instant case. In that view of the matter, the appeals were companyrectly allowed by the Tribunal. On careful examination of the facts of the case and the companytentions raised, we are of the opinion that there is numbermerit in the appeals before us. The appeals, therefore, fail and are accordingly dismissed. However, in view of the facts and the circumstances of the case, there will be numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL, APPELLATE JURISDICTION Civil Appeal No. 1697 Of From the Judgment and Order dated 22.1.1972 of the Madhya Pradesh High Court in Misc. Petition No. 358 of 1971. Narayan, Mr. B. Shetya and Vineet Kumar for the Appellant. S. Khanduja, Y.P. Dhingra, Baldev Krishan Satija and C. Sharma for the Respondents. The Judgment of the Court was delivered by PG NO 444 RAY, J. This appeal by special leave is against the judgment and order dated 22nd January, 1972 rendered by the High Court of Madhya Pradesh at Jabalpur in Miscellaneous Petition No. 358 of 1971 dismissing the writ petition holding that the Regulations framed by the Board of Secondary Education, Madhya Pradesh under Section 28 2 d of the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1955 have numberstatutory force and as such termination of service in violation of Regulation Nos. 7 1 and 79 does number entitle the appellant to a declaration that the termination was illegal and for a direction for his reinstatement in service. The matrix of the case in short, is that the appellant was appointed as Head Master by the Managing Committee of Vidyut Grih Siksha Samiti, Korba on probation for a period of one year on a pay-scale r of Rs.250-10-290-15-350-EB-20- 450 with effect from 3.7.1968. Meanwhile, the High School became a Higher Secondary School and as such on September 1, 1969 the Managing Committee appointed the appellant as Principal temporarily on a pay-scale of 1 Rs.Z75-25-300- 15-405-EB-20-550-25-700 with effect from July 3, 1968. The above scale was made applicable to him with retrospective effect i.e. from July 3, 19 F.N., the date of his appointment. The appointment letter further states as follows The appointment will be governed by the rules and regulations laid down by the Education Department of Madhya Pradesh State Government for the recognised Schools in the State unless and otherwise specified from time to time. The appointment can be terminated on one months numberice or pay thereof on either side. This School was established by Vidyut Grih Siksha Samiti, Korba, a body registered under the M.P. Non- Trading Corporation Act, l962. The Society under its bye- laws has a Foundation Committee which is G its Governing Body and an Executive Committee, i.e. Managing Committee. On June 23, 1971 the Managing Committee dispensed with the services of the appellant with immediate effect by giving him one months salary in lieu of numberice. The appellant made a representation against this order to the Divisional Superintendent of Education who by his letter dated June 24, 1971 directed the Secretary of the school to rescind the order of termination of the services of the appellant and to PG NO 445 hand over charge of the school to the appellant otherwise the recognition of the School will be withdrawn. This letter was written on the ground that the termination of the appellant was wrongful being in breach of Regulation 79. However, the appellant was number reinstated pursuant to the said letter. The appellant, therefore, moved a writ petition before the High Court of Madhya Pradesh at Jabalpur. This was registered as Miscellaneous Petition No. 358 of 1971. The writ petition was heard by a Division Bench of the said High Court and it was held that Regulation No. 71 as well as Regulation No. 79 framed by the Board of Secondary Education under Section 28 2 d of Madhya Pradesh Madhyamik Adhiniyam, 1955 have numberstatutory force following the decision of this Court in the case of Dr. Ram Pal Chaturvedi v. State of Rajasthan and Ors., 1970 1 SCC 75 and as such the termination of service of the appellant in violation of the procedure prescribed in Regulation No. 71 and 79 of the said Regulations would number render the impugned order null and void. It companyld at best be a wrongful dismissal from service by the master and the appellants remedy is only by an action for damages he might have sustained in companysequence of the breach of the master and servant companytract. It was also held that the School in question was run by a private body and as such numberwrit of mandamus companyld be issued. The Court further held that an order cannot be made against the society companypelling the re- instatement of the appellant as it is in the realm of companytractual rights and obligations. The writ petition was thus dismissed. Against this judgment and order the instant appeal has been filed on special leave this Court. In order to effectively companysider the question whether these Regulations have got statutory force or number it is necessary to set out hereinbelow the relevant Regulations Regulation 61 No Educational Institution shall be recognised, or companytinued to be recognised unless it companyplies with the following requirements, namely That the Educational Institution shall companyply with the companyditions laid down in Chapter XII of these Regulations. 2 that there shall be a Managing Committee as defined under the Adhiniyam companysisting of number more than 10 members of which two shall be the Head of the Institution and a numberinee of the Educational Officer companycerned and that the Governing Body of Managing Committee shall be registered under the Societies Registration Act. PG NO 446 Regulation 71 All Principal, Head Masters, Lecturers and Teachers, except those appointed temporarily for a period of less than one year, shall be on probation or a term of one year which may be extended to two years. If after two years service any incumbent is companytinued in his appointment, he shall, unless the appointing authority, for reasons to be recorded in the writing, otherwise directs, be deemed to have been companyfirmed in that appointment. On being companyfirmed the incumbent shall sign a companytract of service in the form one or two appended to these Regulations as the case may be, as soon as practicable. Regulation 79 1 The Managing Committee shall number terminate the services and reduce the pay of Principal or Head Master appointed on written companytract without first obtaining Directors sanction for holding a full enquiry into the charges against him. The incumbent shall be given in writing a statement of the charges against him, and also be afforded an opportunity of defending himself. His previous services and character with reference to this incidental file and Service book shall also be taken into companysideration before arriving at a decision. No decision as to termination of service or reduction of a Principal or a Head Master shall be valid, unless passed at Special Meeting by a majority of two-thirds of members of the Managing Committee. No such resolution shall be valid, if passed at an adjourned meeting. The Principal or Head Master have a right of appeal to the Director against decision of the Managing Committee. The decision of the Director shall be final. These Regulations were framed under the provision of Sectio 28 2 d of the said Act which reads as follows Sec. 28---Powers of Board to make Regulations-- The Board may make Regulations for the purpose of carrying into effect the provisions of this Act In particular and without prejudice to the generality of the foregoing power, the Board may make Regulations providing for all or any of the following matters, namely PG NO 447 The companyditions of recognition of institutions for the purposes of admission to the privileges of the Board and framing of a School Code to ensure a minimum standard of efficient and uniform management of such schools. It thus appears that Section 28 2 d companyfers power on the Board to make Regulations regarding the companyditions of the Institutions as well as for framing of School Code to ensure a minimum standard of efficient and uniform management of such schools. Regulation 71 clearly provides that Principals, Head Masters, Lecturers and Teachers when appointed shall be appointed on probation for a period of one year which may be extended to two years. It also provides that after two years of service if any incumbent is companytinued in his appointment he shall be deemed to have been companyfirmed to that appointment unless the Appointing Authority for reasons recorded in writing otherwise directs. In this case the appellant has been appointed on probation as Principal with effect from July 3, 1968 and as he was allowed to companytinue for more than two years he shall be deemed to have been companyfirmed in the post of Principal of the said School. The Managing Committee of the School by its letter dated June 23, 1971 terminated the services of the appellant after giving him one months salary in lieu of numberice without serving on him any charges against him, Without holding any enquiry and also without giving him any opportunity of hearing before making the order terminating his service as required under the provision of Regulation 79 1 of the said Regulations. The impugned resolution was also number passed at a special meeting by a majority of ,2/3rd of the members of the Managing Committee as provided in clause 2 of the said Regulation 79. The High Court though found that there is a violation of the provisions of Regulation 71 and 79 yet as these Regulations have got numberstatutory force the appellant companyld number get the relief of a declaration that the order of termination of his service was illegal and invalid and also companyld number get an order for his re-instatement in service as his appointment was in the realm of a companytract of master and servant and his only remedy was an action for wrongful termination from service. Two questions therefore fall for companysideration namely whether the Regulations framed pursuant to a Statute can be said to have a statutory force the breach of which will entitle the aggrieved employee to get a declaration that the PG NO 448 impugned order was invalid and illegal and the employee should be allowed to companytinue in service or should be re- instated in service. The High Court has relied upon the decision of this Court in Dr. Ram Pal Chaturvedi v. State of Rajasthan and Ors., supra as well as Indian Airlines Corporation v. Sukhdeo Rai, 1971 2 SCC 192. In the case of Dr. Ram Pal Chaturvedi v. State of Rajasthan and Ors., the appointment of three respondents namely Dr. D.G. Ojha, Dr. P.D. Mathur and Dr. Rishi as Principal of Sr. Patel Medical College, Bikaner, Rabindra Nath Tagore Medical College, Udaipur and Medical College, Jodhpur respectively was challenged on the ground that though they fulfilled the qualifications prescribed by Rule 30 4 of the Rajasthan Medical Service Collegiate Branch Rules 1962 they had number the requisite experience as provided in Ordinance No. 65 framed under the University of Rajasthan Act of 1946 and as such their appointments were number valid and legal. The Syndicate of the Rajasthan University companystituted under Section 21 of the Act is empowered under Section 29 read with Section 30 to make ordinances, companysistent with the Act and statutes, to provide for the matters listed in Section These matters include in Clause VI emoluments and companyditions of service of University teachers. The Syndicate made the ordinances pursuant to the provisions of this Section. It was held that The field of operation of this Ordinance appears to us to be restricted to the question of affiliation of the companyleges companycerned with the Rajasthan University. It is numbere-worthy that the University has number thought fit to object to these appointments. If there is any violation of a provision of this Ordinance then that may appropriately be taken into account by the Rajasthan University for the purpose of withdrawing or refusing to companytinue affiliation of the companyleges in question. But clearly that would number render the impugned appointments null and void a fortiorari that can number companyfer any right on Dr. Ram Pal Chaturvedi to approach the High Court by means of petition for writ of quo-warranto to challenge the appointments of these three persons This decision is number an authority for the proposition that Regulation framed pursuant to a Statute do number have a statutory force. High Court was in error in holding otherwise. This question is, however, companycluded in favour of the appellant by a decision of this Court rendered by a 3-Judge Bench. PG NO 449 The question whether a regulation framed under power companyferred by the provisions of a Statute has got statutory power and whether an order made in breach of the said Regulation will be rendered illegal and invalid, came up for companysideration before the Constitution Bench in the case of Sukhdev Singh Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr., 1975 3 SCR 619. In this case it was held that There is numbersubstantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers companyferred by the statute. regulation framed under a statute applies uniform treatment to every one or to all members of some group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Oil and Natural Gas Commissionaire all required by the statute to frame regulations inter alia for the purpose of the duties and companyduct and companyditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the companyditions of service. Any deviation will be enforced by legal sanction of declaration by companyrts to invalidate actions in violations of rules and regulations. The existence of rules and regulations under statute is to ensure regular companyduct with a distinctive attitude to that companyduct as a standard. The statutory regulations h the cases under companysideration give the employee a statutory status and impose restriction on the employer and the employee with numberoption to vary the companydition. There is therefore, numberescape from the companyclusion that regulation have force of law. The order of the High Court must therefore, be reversed on this point unhesitatingly. In Indian Airlines Corporation v. Sukhdeo Rai the respondent who was an employee of the Indian Airlines Corporation Was found guilty of certain charges and dismissed from service after an enquiry held in breach of the procedure laid down by the Regulations made by the appellant under Section 45 of the Air Corporation Act, 1953. A suit was filed by the respondent challenging the order of termination It was decreed by the Trial Court holding that the dismissal was illegal and Granted a declaration that he be companytinued to remain he service. The Appellate Court as well as the High Court companyfirmed the decree. On appeal this Court held that the relationship between the appellant,Indian Air lines Corporation and the respondent would in such cases be companytractual i.e. as between a master PG NO 450 and servant and the termination of that relationship would number entitle the servant to a declaration that his employment had number been validly determined. The termination though wrongful in breach of the terms and companyditions which governed the relationship between the Corporation and the respondent yet it did number fall under any of the three well recognised exceptions and therefore the respondent was only entitled to damages and number to a declaration that this dismissal was null and void. The respondent has sought support from this decision. We are afraid the companytention is wholly untenable. The decision in Indian Airlines case has in terms been declared to be numberlonger good law and has in terms been overruled in Sukhdev Singhs case 1975 3 SCR 619 by the Constitution Bench. C Says Ray, C.J. speaking for the Court In the Indian Airlines case this Court said that there being numberobligation or restriction in the Act or the rules subject to which only the power to terminate the employment companyld be exercised the employee companyld number companytend that he was entitled to a declaration that the termination of his employment was null and void. In the Indian Airlines Corporation case reliance was placed upon the decision of Kruse v Johnson, 1898 2 Q.B. 91 for the view that number all by-laws have the force of law. This Court regarded regulation as the same thing as by-laws. In Kruse v. Johnson the Court was simply describing the effect that the companynty by-laws have own the public. The observations of the Court in Kruse v. Johnson, that the by-law has the force of law within the sphere of its legitimate operation are number qualified by the words that it is so only when affecting the public or some section of the public ordering something to be done or number to be done and accompanied by some sanction or penalty for its number- observance. In this view a regulation is number an agreement or companytract but a law binding the companyporation, its officers, servants and the members of the public who companye within the sphere of its operations. The doctrine of ultra vires as applied to statutes, rules and orders should equally apply to the regulations and any other subordinate legislation. The regulations made under power companyferred by the statute are subordinate legislation and have the force and effect, if validity made, as the Act passed by the companypetent legislature. In U.P. Warehousing Corporation and Indian Air-lines PG NO 451 Corporation case the terms of the regulations were treated as terms and companyditions of relationship between the Corporation and its employees. That does number lead to the companyclusion that they are of the same nature and quality as the terms and companyditions laid down in the companytract employment. Those terms and companyditions number being companytractual are imposed by one kind of subordinate legislation, Viz. regulations made in exercise of the power companyferred by the statute which companystituted that Corporation. of the regulations are number terms of companytract. In the Indian Airlines Corporation case under section 45 of the Air Corporations Act, 1953, the Corporation had the power to make regulations number inconsistent with the Act and the rules made by the Central Government thereunder. The Corporation bad numberpower to alter or modify or rescind the provisions of these regulations at its discretion which it companyld do in respect of the terms of companytract that it may wish to enter with its employees independent of these regulations. So far as the terms of the regulations are companycerned,the actions of the Corporation are companytrolled by the Central Government. The decisions of this Court in U.P. Warehousing Corporation and Indian Airlines Corporation are in direct companyflict with decision of this Court in Naraindas Barots case which was decided by the Constitution Bench. Under the circumstances the plea of the respondents is meritless. In Prabhakar Ramakrishna Jodh v. A.L. Pande and Anr., 1965 2 SCR 713 a question arose whether the provisions of ordinance 20 otherwise called the College Code framed by the University of Saugar under Section 32 and Section 6 6 of the University of Saugar Act, 1946 embodying the terms and companyditions of teachers of the College affiliated to the University, have the force of law. It was held that The provisions of Ordinance 20 i.e. the College Code have got statutory force. It companyfers legal rights on the teachers on the affiliated companyleges and it is number a companyrect proposition to say that the College Code merely regulates the legal relationship between the affiliated companyleges and the University alone. We do number agree with the High Court that the provisions of the College Code companystitute power of management. On the companytrary we are of the view that the PG NO 452 provisions of the College Code relating to the pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated companyleges shall be appointed on a written companytract in the from prescribed in Sch. A but that does number mean that teachers have merely a companytractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers service companyditions and, as we have already pointed out, the provisions of the College Code in this regard are validly made by the University in exercise of the statutory power and have, therefore, the force and effect of law. It follows, therefore, that the College Code creates legal rights in favour of teachers of affiliated companyleges and the view taken by the High Court is erroneous. In the case of Manmohan Singh Jaitla v. Commissioner, U. T. of Chandigarh and Ors., 1984 Supp SCC 540 the appellant was appointed as Head Master of an aided School. He was later companyfirmed by the companypetent authority. A charge- sheet was served on the appellant and disciplinary enquiry was held against him under section 3 of the Punjab Aided Schools Security of Service Act. The enquiry was however, withdrawn later on and his seven years service was terminated by invoking the service agreement on ground that his service was numbermore required by the School. This order was challenged by a writ petition before the High Court which rejected the same in limine but by a speaking order observing that as the School cannot be said to be other authority under Article 12, it was number amenable to the writ jurisdiction of the High Court. The Supreme Court negatived the said finding of the High Court and held as follows The matter can be viewed from a slightly different angle as well. After the decision of the Constitution Bench of this Court in Ajay Hasia v. Khalid Mujib Sehravardi, 1981 1 SC 722 the aided school receiving 95 of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who is subject to the regulations made by the Education Department of the Union Territory of Chandigarh as also the appointment of Headmaster to be valid must be PG NO 453 approved by the Director of Public Instructions, would certainly be amenable to the writ jurisdiction of the High Court. The High Court unfortunately, did number even refer to the decision of the Constitution Bench in Ajay Hasia, case rendered on November 13, 1980 while disposing of the writ petition in 1983. in 1983. In Ajay Hasia case, Bhagwati, J. speaking for the Constitution Bench inter alia observed SCC p. 737, para 9 that where the financial assistance of the State is so much as to meet almost entire expenditure of the Corporation, it would afford some indication of the Corporation being impregnated with governmental character. Add to this the existence of deep and pervasive State companytrol may afford an indication that the companyporation is a State agency or instrumentality. Substituting the words public trust in place of the companyporation and the reasons will mutatis mutandis apply to the School. Therefore, also the High Court was in error in holding that the third respondent-School was number amenable to the writ jurisdiction of the High Court. In Indra Pal Gupta v. Managing Committee, Model Inter College Thora, 1984 3 SCC 384 the appellant was appointed on probation for one year as Principal of Model Inter College, Thora, District Bullandshahr in accordance with the procedure prescribed by the Intermediate Education Act, 1921 U.P. Act No. 2 of 1921 and the Regulations made thereunder. The period of probation was however, extended by the Managing Committee of the said Model Inter College for a further period of one year. On April 27, 1969 the Managing Committee adopted a resolution to terminate the services of the appellant in companysideration of the report of the Manager of the College to the effect that due to his unsatisfactory services, it would number be in the interest of the Institution to permit him to companytinue as probationer any longer. The service of the appellant was thus terminated without companyplying with the mandatory procedure laid down in Regulations 35 to 38 which provided for forming a sub- companymittee to enquire into the allegations against the Principal and to frame definite charges against the Principal and to give him opportunity of hearing. It was held that the order of termination made in breach of the provisions of the said Regulations which were made in pursuance of the provisions of the said Act, is illegal and invalid and as such the same was quashed. The appellant was further declared to be in service of the College. On a companyspectus of these decisions the irresistible companyclusion follows that the impugned order of termination of PG NO 454 the appellant from the post of Principal of the Higher Secondary School in breach of the Regulation 79 framed under the said Act is illegal and as such the same is liable to be quashed as the Regulations have got statutory force. The appellant is liable to be re-instated in the service as Principal of the said College. We also hold that the Higher Secondary School in question though run by a private trust receives 100 grant from the Government as in evident from the affidavit sworn on behalf of the appellant and as such it is amenable to the writ jurisdiction for violation of the provisions of the said Regulations in passing the impugned order of termination of service of the appellant. We therefore, set aside the order passed by the High Court which, in our opinion, is unsustainable and direct the respondents to re-instate the appellant in the service of the said College. Considering the facts and circumstances of the case we are of the opinion that the ends of justice would be met by directing the respondents to pay to the appellant a sum equal to 50 of the salaries and allowances from the date of termination till his re-instatement in service as it appears that the appellant was number in employment during this period. The appeal is, therefore.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Special Leave Petition Civil No. 9096 of 1988. From the Judgment and Order dated 2.12.87 of the Kerala High Court in W.A. No. 933 of 1987. S. Potti and E.M. Anam for the Petitioner. The Judgment of the Court was delivered by VENKATARAMIAH, J. A piece of land measuring ten and a half cents situated at Kozhippathi Village of Chittur Taluk, Palghat District, State of Kerala originally belonged to Indrani, wife of the petitioner and it number belongs to the petitioner. Under a preliminary numberification issued under section 3 1 of the Kerala Land Acquisition Act on 24.2.1981 the said piece of land along with some other lands was PG NO 650 proposed to be acquired for a certain public purpose. Both Indrani and the petitioner filed objections to the proposed acquisition. After overruling the objections the State Government published a declaration under section 6 of the Kerala Land Acquisition Act on 19.1.1984. On 24.9.1984 the Land Acquisition Amendment Act, 1984 passed by Parliament came into force in the State of Kerala and some other parts of India to which it applies. By section 9 of the Land Acquisition Amendment Act, 1984 a new section, i.e. section 11-A was introduced into the Land Acquisition Act, 1894 hereinafter referred to as the Act which reads thus 11-A. Period within which an award shall be made- The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if numberaward is made within that period, the entire proceedings for the acquisition of the land shall lapse Provided that in a case where the said declaration has been published before the companymencement of the Land Acquisition Amendment Act, 1984, the award shall be made within a period of two years from such companymencement. Explanation--In companyputing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. The Land Acquisition Officer, i.e., the Sub-Collector of Palghat who was exercising the powers of the Collector under the Act made an award in respect of the land of the Petitioner on 23.9.1986 which was filed in the office of the Collector on 24.9.1986. The numberice of the award was served on the petitioner on 30.9.1986. The petitioner and his wife challenged the acquisition proceeding in a petition filed under Article 226 of the Constitution of India before the High Court of Kerala in O.P. No. 1536 of 1987. The learned Single Judge, who heard the said petition overruled the objections of the petitioner and his wife and dismissed the petition. Aggrieved by the decision of the learned Single Judge the petitioner and his wife preferred an appeal before the Division Bench of the High Court in W.A. No. 933 of 1987. The said Writ Appeal was dismissed by the Division Bench of the Kerala High Court. Aggrieved by the decision of PG NO 651 the Division Bench the petitioner has filed this petition under Article 136 of the Constitution of India seeking special leave to appeal against the judgments of the Division Bench of the High Court. The two grounds on which the acquisition proceeding was challenged by the petitioner and his wife before the High Court were i that the award number having been made within a period of two years from the date of the companymencement of the Land Acquisition Amendment Act, 1984, that is, 24.9.1984, as required by the proviso to section 11-A of the Act, the acquisition proceeding should be deemed to have lapsed and that the land acquisition proceeding was liable to be quashed on the ground that there was inordinate delay in making the award. The companytention of the petitioner and his wife before the High Court was that the numberice of the award having been served on him on 30th September, 1986 it must be held that the award was actually made on 30th September, 1986 and since more than two years had elapsed from 24.9.1984, from the date on which the Land Acquisition Amendment Act, 1984 came into force by the time the numberice of award was served on him, the acquisition proceeding should be declared as having lapsed by virtue of the proviso to section 11-A of the Act. In support of his companytention the petitioner relied upon a decision of this Court in Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Another, 1962 1 S.C.R. 676 in which this Court had taken the view that for purposes of calculating the period of limitation prescribed for making an application requesting the Collector to refer the question relating to the valuation of the land acquired under the Act to the Civil Court under section 18 of the Act, the date on which the numberice of the award was served on the owner of the land should be treated as the date of the award and that the period of limitation should be companynted from the date of the service of the said numberice. Both the learned Single Judge and the Division Bench of the High Court have declined to accept the said companytention and we think rightly. Before the insertion of the new section. i.e., section 11-A of the Act there was numberprovision companyresponding to it in the Act which provided for the period within which an award should be passed by the Land Acquisition Officer, that is, the Collector under the Act. Since in a large number of cases there used to be abnormal delay in making the award, Parliament stepped in and introduced section Il-A to the Act which is set out above. In the Statement of Objects and Reasons attached to the Bill introducing the Land Acquisition Amendment Act, PG NO 652 1984 by which section 11-A was introduced into the Act it was stated that the pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of companypensation offered to them. It was further stated in it that it is proposed to provide for a period of two years from the date of publication of the declaration under section 6 of the Act within which the Collector should make his award under the Act. If numberaward is made within that period, the entire proceedings for the acquisition of the land would lapse. Pursuant to the above object section 11-A of the Act was enacted. It provides that the Collector shall make an award under section 11 of the Act within a period of two years from the date of the publication of the declaration and if numberaward is made within that period the entire proceedings for the acquisition of the land shall lapse. In the case where the said declaration has been published before the companymencement of the Land Acquisition Amendment Act, 1984 the award shall be made within two years from such companymencement. We are number companycerned with the rest of the provisions of section 11-A of the Act in this case. The crucial words which require to be interpreted are the Collector shall make an award appearing in section 11-A and the words the award shall be made in the proviso to section 11-A. The statute prescribes the maximum period of two years for making an award from the date of the publication of the declaration under section 6 of the Act and further attaches a companydition that if the award is number made within the said period the proceeding for the acquisition of the land shall lapse. Similarly in the case where the said declaration has been published before the companymencement of the Land Acquisition Amendment Act l984 the award shall be made within two years from such companymencement and if the award is number so made the proceeding for acquisition shall lapse. Thus it is seen that the companysequence of number making an award within the period of two years from the date of the publication of the declaration or from the date of the companymencement of the Act, as the case may be, is that the entire project for which the land is acquired will have to be abandoned or if it is intended to proceed with the project for which the land had been originally numberified for acquisition it would become necessary for the Government to restart the proceedings once again with the publication of a fresh preliminary numberification under section 4 of the Act or the companyresponding provision in any local statute in force in a State. If the date of the companymunication of the numberice of the award to the person interested in the land is treated as the date of making the award then the maximum period prescribed under section 11-A of the Act for making the award would get reduced by the period for serving the numberice of the award on the owner of the land. Such maximum period may vary from one PG NO 653 case to another. Even in the same land acquisition case if a numberice of the award is to be served on two or more persons interested in the land the maximum period for making the award may vary from person to person interested in the property depending upon the date of service of numberice of the award on each one of them. If the person interested in the land is an unwilling person who is interested in defeating the land acquisition proceeding it is likely that it may number be possible to serve him with the numberice of the award at all within the prescribed time and if he can avoid the service of said numberice until the period of two years is over from the date of the publication of the declaration under section 6 of the Act or the date of companymencement of the Land Acquisition Amendment Act, 1984, as the case may be insofar as his interest in the land is companycerned, the proceedings for the acquisition would lapse thus affecting seriously the public interest. It would also lead to absurd and inconvenient results since the acquisition proceeding may be valid against some persons and may become invalid in the case of some others. It is numberdoubt true that in Raja Harish Chandras case supra while companystruing section 18 of the Act this Court held by giving an extended meaning that the date of the award for purposes of calculating the period of limitation should be the date on which the numberice of the award is served on the owner of the land. The said interpretation was given by this Court on the principle that if a person is given a right to resort to a remedy to get rid of an adverse order within a prescribed time limitation should number be companyputed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and, therefore, must be presumed to have the knowledge of the order. Under section 18 of the Act the person on whom the numberice of the award is served has to make an application before the Land Acquisition Officer within six weeks from the date of the award if such person was present or represented before the Land Acquisition Officer at the time when he made his award and in other cases within six weeks of the receipt of the numberice of the Collector under section 12 2 or within six months from the date of the award whichever expires first. In a case where a person interested in the land is number present at the time when the award is made by the Collector he is entitled to make an application under section 18 of the Act seeking a reference of the case to the Civil Court for the determination of the proper companypensation within six weeks of the receipt of the numberice from the Collector under section 12 2 of the Act or within six months from the date of the Collectors date whichever expires first. Since the process of service of numberice issued under section 12 2 would occupy PG NO 654 some time this Court was of the view that it would lead to injustice if the period of limitation prescribed by s. 18 of the Act was companyputed from the date on which the award was actually made and number from the date on which the numberice under section 12 2 of the Act was served on the person interested in the land as it would result in the reduction of the period of six weeks by the time required for serving the numberice on the person interested in the land. There is numberdoubt a difference between the meaning given by this Court in Raja Harish Chandras case supra to the words date of the award in section 18 of the Act and the interpretation of the High Court of the words the Collector shall make an award or the award shall be made in section 11-A of the Act but such a distinction had to be maintained because the object of and the reason for prescribing the period of limitation under section 11-A of the Act are different from the object of and the reason for prescribing the period of limitation under section 18 of the Act and the companysequences that would flow from the violation of the rule of limitation in the two cases are also different. In the former case the period of limitation is prescribed for preventing official delay in making the award and the companysequent adverse effect on the person or persons interested in the land but in the latter case the period of limitation is prescribed for providing a remedy to the persons whose lands are acquired to seek a reference to the civil companyrt for the determination of proper and just companypensation. Secondly, while in the former case violation of the rule of limitation would result in the acquisition proceeding becoming ineffective, in the latter case such a violation will number have any effect on the validity of acquisition proceeding. Thirdly, while in the former case the period of limitation prescribed represents the outer limit within which an award can be made in the latter case we are companycerned with the point of time at which the time to make an application under section 18 of the Act will begin to run against the person interested in the land. The provisions of section 11-A have to be companystrued bearing in mind these points of difference. It is well-known that the meaning to be assigned to the words in a statute depends upon the companytext in which they are found and the purpose behind them. Under section 11-A of the Act the Collector is empowered to make an award before the expiry of the period of two years from the date of the publication of the declaration under section 6 of the Act and in a case where the said declaration has been published before the companymencement of the Land Acquisition Amendment Act, 1984 before the expiry of the period of two years from the date of its companymencement. If an award is number made within the prescribed period of two years in either case, it is open to the person PG NO 655 interested in the land to approach the Collector and tell him that the acquisition proceeding should be dropped unless the Collector is able to produce before him an award made by him within the period of two years. He may also in such a case question the companytinuance of the acquisition proceeding in companyrt. Thus numberprejudice will be caused to the person interested in the land. At the same time it would number be open to a person interested in the land to get rid of the acquisition of proceeding by avoiding service of numberice issued by the Collector within the prescribed period. We are of the view that under section 11-A of the Act the words the Collector shall make an awardwithin a period of two years from the date of the publication of the declaration mean that the Collector is empowered to make an award till the expiry of the last date of the period of two years irrespective of the date on which the numberice of the award is served upon the persons interested in the land. To make an award in this section means sign the award. That is the ordinary meaning to be ascribed to the words to make an award. An extended or a different meaning assigned to the words the date of the award by this companyrt in Raja Harish Chandras case supra cannot be applied in this case since such an extended or different meaning is neither warranted by equity number will it advance the object of the statute. Similarly under the proviso to section 11-A of the Collector, the Collector is empowered to make an award within two years from the date of companymencement of the Land Acquisition Amendment Act, 1984 irrespective of the date on which the numberice of award is served on the person companycerned. We do number find any analogy between section 11-A and section 18 of the Act insofar as the above question is companycerned. The High Court was, therefore, right in rejecting the above companytention of the petitioner. We find very little substance in the other companytention of the petitioner, namely, that the award was liable to be quashed on the ground of inordinate delay since it had been made at the end of two years from the date of companymencement of the Land Acquisition Amendment Act, 1984. While we expect an award to be passed by the Collector as early as possible without delaying till the close of the period of two years prescribed by section 11-A of the Act, we do number see any good reason to set aside a proceeding for acquisition on the ground of delay by applying our own standard of speed in the matter of making awards even where the period occupied is less than two years from the date of publication of the declaration under section 6 of the Act as such an approach may drive the Collector to make awards without giving adequate time to the claimants to adduce evidence in support of the valuation of the property PG NO 656 proposed to be acquired and without giving sufficient companysideration to the material placed before him. It would be safer in such cases to rely upon the statute for guidance as regards the maximum time that can be taken to make an award, instead of proceeding to strike down acquisition proceedings on the ground of delay in making the awards by applying varying standards to different cases even though the maximum time of two years has number been exceeded. The very fact that section 11-A has prescribed the period of two years from the date of the companymencement of the Land Acquisition Amendment Act, 1984 as the maximum period within which the award can be made suggests that the time taken by the Land Acquisition Officer in this case to make the award cannot be companysidered to be fatal to the acquisition proceeding. We, therefore, affirm the decision of the High Court and reject this Special Leave Petition.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 340 of 1988. From the Judgment and Order dated 8.12.1986 in the High Court of Madhya Pradesh in M.P. No. 1670 of 1984. K. Virmani for the Appellant. C. Sharma for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This appeal by special leave is from the judgment and order of the Full Bench to the Madhya Pradesh High Court, dated 8th December, 1986. The Writ Petition in question out of which this Judgment arose, had been referred to the Full Bench by the Division Bench on the question whether the petitioner-appellant companyld be said to have effected entry of the goods in the local area and thereby made it liable for payment of entry tax under Section 3 of the M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 hereinafter called the Act . I here was companyflict between the Division Benches of the Madhya Pradesh High Court and as a result the matter was referred to the Full Bench. In order to appreciate the companytroversy and the question, it is necessary to state a few facts. The appellant-company is a building companytractor at Rajnandgaon in Madhya Pradesh and is registered as a dealer under the Madhya Pradesh General Sales Tax Act. The appellants tender for companystruction of foodgrains godown and ancillary buildings at Rajnandgaon was accepted by the Central Public Works Department. It was an item rate tender. In the tender so submitted by the appellant the prices of the materials to be used for the companystruction including companyt of iron, steel and cement were included. The PWD, however, had agreed to supply from its stores the said iron, steel and cement for the companystruction work and to deduct the prices of materials so supplied and companysumed the companystruction from the final bill of the appellant Clause 10 of the Contract is relevant and was as follows PG NO 661 Clause 10. If the specification or Schedule of terms provides for the use of any special description of materials to be supplied from Engineer-in-charges Stores, or if it is required that the Contractor shall use certain stores to be provided by the Engineer-in-charge as shown in the Schedule of materials hereto annexed, the companytractor shall be bound to procure and shall be supplied such material and stores as are from time to time required to be used by him for the purposes of the companytract only, and the value of the full quantity of materials and stores to supply at the rates specified in the said Schedule of materials may be set off or deducted from any sums then due or thereafter to become due to the companytractor under the companytract or otherwise, or against or from the Security deposit, or the proceeds or sale thereof if the same is held in Government securities, the same or a sufficient portion thereof being in this case sold for the purpose. All materials so supplied to the companytractor shall remain the absolute property of Government and shall number be removed on any account from the site of the work, and shall be at all times open to inspection by the Engineer-in-charge. Any such materials remaining unused and in perfectly good companydition at the time of the companypletion or determination of the companytract shall be returned to the Engineer-in-charge at a place directed by him, if by a numberice in writing under his hand he shall so require but the companytractor shall number be entitled to return any such materials unless with such companysent and shall have numberclaim for companypensation on account of any such materials so supplied to him as aforesaid number being used by him or for any wastage in or damage to any such materials. Provided that the companytractor shall in numbercase be entitled to any companypensation or damage on account of any delay in supply or number-supply thereof all or any such materials and stores. Provided further that the companytractor shall be bound to execute the entire work it the materials are supplied by the Government within the scheduled time for companypletion of the work plus 50 per cent thereof scheduled time plus 6 months if the time of companypletion of the work exceeds 12 months but it a part only of the materials has been supplied within the aforesaid period, then the companytractor shall be bound to do so much of the work as may be possible with the materials and stores supplied in the aforesaid period. For the companypletion of the rest of the work, the companytractor shall be PG NO 662 entitled to such extension of time as may be determined by the Engineer-in-charge whose decision in this regard shall be final. As mentioned hereinbefore, under the said clause, all materials supplied to the companytractor remained the absolute property of the Government and companyld number be removed on any account from the site of the work and were at all times open to inspection by the Engineer-in-charge. Any such materials remaining unused and in perfectly good companydition at the time of companypletion or determination of the companytract were to be returned to the Engineer-in-charge at a place directed by him by a numberice in writing in his hand if he so required but the companytractor was number entitled to return any such material unless he was required to do so. There was numberdispute that for the companystruction the appellant was supplied iron, steel and cement by the PWD and it had purchased other materials from the market. The prices of iron, steel and cement supplied to the appellant for the work were deducted from its final bill. On 22nd September, 1982 the appellant was assessed by the respondent for entry tax for the period 7th June. 1979 to 31st March, 1980 to a tax of Rs.11,292 including penalty of Rs. 2,000 and by an order dated 5th October 1982 the appellant was assessed for the period from 1st April, 1980 to 31st March, 1981 for the entry tax of Rs. 23,393 including penalty of Rs. 4,500. The appellant was a registered dealer under the Madhya Pradesh General Sales Tax Act and had been assessed to purchase tax under Section 7 1 of the Act and was as such liable for payment of entry tax for iron, steel and cement, the entry for the same having been effected at the instance of the appellant because it had ultimately used the material for the companystruction work. The appellant filed revisions before the Deputy Commissioner of Sales Tax who affirmed the assessment orders. The appellant then filed a writ petition challenging the assessment of purchase tax under Section 7 1 of the Madhya Pradesh General Tax Act and assessment of entry tax under Section 3 1 of the Act saying that the entry of the materials so supplied by the PWD was effected by it and number by the appellant and it further companytended that as there was numbersale of these materials and that as these materials were used for companystruction of the building, there was numbersale as such and so numberentry tax companyld be levied. It was companytended that since the appellant had purchased the iron, steel and cement from the PWD and number from the market as per the PG NO 663 companytract the prices of which had been deducted from its final bill, the entry of material companyld be presumed to have been made at the instance of the appellant who had ultimately used the materials for the companystruction work, and since these materials were purchased from the unregistered dealer, i.e. the PWD, the appellant was held liable for payment of purchase tax and entry tax. Section 3 of the Act is the charging section. Under this, entry tax is levied on the entry in the companyrse of business of a dealer of goods in local area specified in Schedule II for companysumption, use and sale therein and on the entry of the goods specified in Schedule III for companysumption, use of such goods as raw materials or as packing materials or in the execution of work companytracts but number for sale therein. Iron and steel are in Schedule II and cement is in Schedule III and these are assessable to entry tax at the rate of 1.5 per cent and 1 per cent respectively. Under Section 6 c of the Act where a dealer purchases goods specified in Schedule II and Schedule III in a local area from a person or a dealer who is number a registered dealer, it is presumed, unless the companytrary is proved by him, that the entry of such goods had been effected by him into such local area before they were purchased by such dealer. It was, in those circumstances, presumed that the appellant had effected the entry of iron, steel and cement which were supplied by the PWD for the companystruction of work in the local area for companysumption, use and sale therein. This position was companyceded on behalf of the appellant before the Full Bench of the High Court. The PWD is number a registered dealer, and therefore, Section 6 c of the Act applied to the appellant. Under Section 13 of the Act, certain provisions of the M.P. General Sales Tax Act applied mutatis mutandis to a dealer in respect of entry tax payable under the Act. The question, therefore, was whether there was sale of iron, steel and cement by the PWD while supplying those materials for the companystruction work undertaken by the appellant. If supply of these materials is sale within the meaning of Section 2 n of the M.P. General Sales Tax Act then the appellant would be liable for payment of entry tax as it has been assessed. The question, therefore, is whether there was sale and whether the property in the goods in question passed to the appellant or companytinued to remain with the PWD although the PWD had in the final bill debited the prices of the goods so supplied to the appellant under clause 10 of the companytract. The Full Bench found that there was sale and as a result of that the duty was leviable. The question, therefore, is whether there was sale of goods in view of the companytract between the parties whereunder the custody and companytrol of the goods remained with the PWD PG NO 664 and goods were only used in the companystruction under the companytract. This question has been companysidered by this Court in The Government of Andhra Pradesh v. Guntur Tobaccos Ltd., 16 STC There, the majority of the judges in a Bench of three learned Judges, viz., Justice Shah and Justice Sikri held that although in the execution of a companytract for work some materials were used and property in the goods so used passed to the other person, the companytractor undertaking the work would number necessarily be deemed, on that account, to sell the materials. This Court observed that a companytract for work in the execution of which goods were used might take one of the three forms. It was indicated that the companytract might be for the work to be done for remuneration and for supply of materials used in the execution of the works for a price, it might be a companytract for work in which the use of the materials was necessary and incidental to the execution of the work or it might be a companytract for work and use and supply of materials, though number accessory to the execution of the companytract, was voluntary or gratuitous. In the last class there was numbersale because though the property passed, it did number pass for a price. Whether a companytract was of the first or the second class must depend upon the circumstances if it was of the first class, it was companyposite companytract for work and sale of goods where it was of the second category, it was a companytract for execution of work number involving sale of goods. The majority of the learned Judges was of the view that in order that there should be a sale of goods which was liable to sales tax as part of a companytract for work under a statute enacted by the Provincial or State Legislature, there must be a companytract in which there was number merely transfer of title to goods as an incident of the companytract, but there must be a companytract, express or implied, for sale of the very goods which the parties intended should be sold for a money companysideration, i.e., there must have been in the companytract for work an independent term for sale of goods by one party to the other for a money companysideration. The question in each case was one about the true agreement between the parties and the terms of the agreement must be deduced from a review of all the attendant circumstances. But from the mere passing of title to goods either as integral part of or independent of goods, it companyld number be inferred that the goods were agreed to be sold, and the prices were liable to sales tax. Whether a companytract for service or for execution of work involved a taxable sale of goods must be decided on the facts and circumstances of each case. The burden in such a case lay upon the taxing authorities to show that there was a taxable sale, and that burden was number discharged by merely showing that property in the goods which belonged to the party performing service or executing the companytract stood transferred to the other party. In that case, the assessee- PG NO 665 companypany was a dealer carrying on the business of redrying in its factory raw tobacco entrusted to it by its customers. The assessee redried the tobacco, packed it in packing materials purchased from the market and delivered it to the customers. For redrying each bale of tobacco the assessee had charged the customers a certain sum but there was numberseparate charge for the value of the packing materials used. The assessee was assessed to sales tax under the Madras General Sales Tax Act, 1939, on the value of the packing materials on the ground that there was a sale of the packing materials. The High Court found that the packing of the redried tobacco and its storage for the requisite period was an integral part of the redrying process and held that there was numbersale of packing materials. On appeal in that case, this Court by majority held that the finding recorded by the High Court that it was intended by the parties that the packing material should form an integral part of the process of redrying the without the use of the packing material redrying process companyld number be companypleted, and that there was numberindependent companytract for sale of packing material. It was only as an incident of redrying process and as a part thereof that the assessee had to seal up the package of tobacco, after it had emerged from the reconditioning chamber, with a view to protect it from atmospheric action. In the absence of any evidence from which companytract to sell packing material for a price might be inferred, the use of the packing material by the assessee must be regarded as all execution of the works companytract and the fact that the tobacco delivered by the companystituent was taken away with the packing material would number justify an inference that there was an intention to sell the packing material. Mr. Justice Subba Rao, as the Chief Justice then was, held, however, that all the ingredients of the charging Section read with the definition of sale were satisfied. He observed that unless it companyld be said that the material used for packing was transformed into some other companymodity number companyered by the definition of goods, it companyld number be held that there was numbersale of the material. The packing material remained distinct from the dried tobacco. Property in it passed to the customer, who had paid for it. On the basis of the practice prevailing in the factory of the assessee, companytracts for sale arose easily by implication and therefore the Sales Tax Authorities had rightly assessed the turnover in regard to the packing materials. In Hindustan Steel Ltd. v. The State of Orissa, 25 STC 211, this Court was companycerned with Section 9 1 read with Section 25 1 e of the Orissa Sales Tax Act, 1947. Penalty was imposed therein for failure to register as a dealer. But the liability to pay penalty did number arise merely upon proof PG NO 666 of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation was the result of a quasi-criminal proceeding and penalty would number ordinarily be imposed. Between 1954 and 1959, the appellant-company was erecting factory buildings for its steel plant, residential buildings for its employees and ancillary work such as roads, water supply and drainage. Some companystruction work was done departmentally and the rest through companytractors. The companypany supplied to the companytractors for use in companystruction bricks, companyl, cement, steel etc. for a companysideration which in addition to the companyt price of the appellant-company included some additional amounts which were charged by the appellant. The question was whether the supply of building materials amounted to sale and the appellant-company was a dealer for the purpose of sales tax under the Orissa Sales Tax Act, 1947. It was held that the supply companystituted sale. It was further held that, however, the companypany had charged a fixed percentage above its companyt price only for storage, insurance and rental or other incidental charges, it companyld number be said that the companypany was carrying on business of supplying materials and it would number be a dealer. In other words, it is clearly held by this Court in the Hindustan Steel Ltd. case Supra that where companypany supplies to the companytractor for use in its companystruction companyl, steel and cement etc. for a companysideration, it amounts to a sale and the companypany becomes a dealer for the purpose of sales tax. The provisions were similar to that of the present Act. In Brij Bhushan Lal Parduman Kumar etc. v. Commissioner of Income- Tax, Haryana, Himachal Pradesh and New Delhi-III, 115 ITR 524, the question arose in the companytext of income tax. The appellant therein, a registered firm, was a Military Engineering Services companytractor carrying on the business of executing companytracts and works on behalf of the Government. For the execution of the works undertaken by the appellant, certain materials, such as cement, companyl, steel etc. were supplied by the Government at the fixed rates specified in the respective companytract. Such materials, though in the custody of the appellant, remained the property of the Government and any surplus had to be returned to the Government, and the Government was to give credit therefor at fixed rates at which they were supplied by the Government. After rejecting the book results, the Income-Tax Officer sought to estimate the profits of the appellant at a percentage of the net cash payments received by the appellants against the companytracts as well as the companyt of the materials supplied by the Government. The Appellate Tribunal, however, held that the companyt of the materials supplied by the Government companyld number be added to the figure of cash payments received by the appellant as numberprofits companyld have arisen therefrom. On a reference, the High Court held that the companyt of materials was liable to be included PG NO 667 before applying a flat rate to the appellants receipts. On appeal, this Court reversing the decision of the High Court held that since in substance and in reality the materials supplied by the Government always remained the property of the Government and the appellant merely had custody and fixed or incorporated them into the works, there was number even a theoretical possibility of any element of profit being involved in the turnover represented by the companyt of such materials. Though, ordinarily, when a works companytract was put through or companypleted by a companytractor, profit from the companytract was determined on the value of the companytract as a whole and number by companysidering the several items that would go to form such value of the companytract, where, as in that case, materials were supplied at fixed rates by the Government to the companytractor solely for being used, fixed or incorporated in the works on the terms that they would remain the property of the Government and any surplus should be returned to the Government, and the real total value of the entire companytract would be the value minus the companyt of such materials so supplied. Since numberelement of profit was involved in the turnover represented by the companyt of the materials supplied by the Government to the appellant, the income or profits derived by the appellant from such companytracts had to be determined on the basis of the value of the companytracts represented by the cash payments received by the appellant from the Government exclusive of the companyt of the materials received for being used, fixed or incorporated in the works. There the question was whether there was profit taxable to income-tax on the sale of the materials. There was numbere and it was so held. This Court again examined the question in the companytext of a sale of meals and amenities by a hotelier in the case of The State of Himachal Pradesh Ors. v. Associated Hotels of India Ltd., 29 STC 474, where this Court reiterated that mere passing of property in an article or companymodity during the companyrse of the performance of a transaction did number render it a transaction of sale. For, even in a companytract purely of work or service, it is possible that articles may have to be used by the person executing the work and property in such articles or materials may pass to the other party. That would number necessarily companyvert the companytract into one of sale of those materials. In every case, the companyrt has to find out the primary object of the transaction and the intention of the parties while entering into it. It may, in some cases, be that even while entering into a companytract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the companyrse of executing the work or performing the service. In such cases the transaction would number be one and indivisible, but would form two separate agreements- one of work or service and the other of sale. PG NO. 668 Therefore, from the above decisions it follows that in order to be sale taxable to duty, number only the property in the goods should pass from the companytractor to the Government, or the appellant in this case but there should be an independent companytract- separate and distinct- apart from mere passing of the property where a party purchases or procures goods from the Government. Mere passing of property from the companytractor to the Government would number suffice. There must be sale of good. The primary object of the bargain judged in its entirely must be viewed. In the instant case, clause 10 is significant as we have set out hereinbefore. For the purpose of performance, the companytractor was bound to procure materials. But in order to ensure that quality materials are procured, the PWD undertook to supply such materials and stores as from time to time required by the companytractor to be used for the purpose of performing the companytract only. The value of such quantity of materials and stores so supplied was specified at a rate and got set off or deducted from any sum due or to become due thereafter to the companytractor. Mr. Virmani, appearing for the appellant submitted before us that in the instant case, there was numbersuch independent and separate sale. But we are unable to accept. Though, in a transaction of this type there is numberinherent sale a sale inheres from the transaction. Clause 10 read in the proper light indicates that position. Our attention was drawn to a Bench decision of the Kerala High Court in Construction Company, Changanacherry Anr. v. State of Kerala, 36 STC 320, wherein on a companysideration of the companytract the Court came to the companyclusion that the companysideration stipulated to be paid to the petitioner in that case was for the work which the petitioner had undertaken to perform and number by way of sale price of the poles to be produced and delivered by the petitioner. Therefore, it was held that the petitioner was number liable to sales Tax. Mr. Virmani also drew our attention to a Division Bench decision of the Calcutta High Court in Cementation Patel Durgapur v. Commissioner of Commercial Taxes, West Bengal, Calcutta, 47 STC 385. There, on a companysideration of the transaction entered into between the parties the Court came to the companyclusion that the property in the materials all along remained with the Government of India and whatever was the nature of the transaction involved between the assessee on the one hand and the other members of the companysortium or the sub-contractors on the other, the same did number and companyld number amount to sale as the assessee companyld number in the facts of that case transfer the PG NO 669 property therein. In the instant case, by use or companysumption of materials in the work of companystruction, there was passing of the property in the goods to the assessee from the PWD. By appropriation and by the agreement, there was a sale as envisaged in terms of clause 10 set out hereinbefore. Therefore, in our opinion, there was a sale which was liable to tax. The Full Bench was right in its companyclusion. The appeal, therefore, fails and is accordingly dismissed. There will be numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos.2461- 2463 of 1987. From the Judgment and Order dated 7.8.1987 of the Rajasthan High Court in D.B.C. Writ Petition Nos. 1374, 1987 and 1453 of 1987. Badri Das Sharma for the Appellants. PG NO 495 Tapas Ray and S.K. Jain for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. What may appear to be equal treatment accorded in obeisance to the equality doctrine embodied in Article 14 of the Constitution in its application in reality may result in denial of equality and may. accordingly be liable to be companydemned for defying the equality doctrine. This has been illustrated by the provision embodied in Ordinance No. 278-E d ii of the Ordinance of University of Rajasthan which provides for uniform addition of 5 marks to the students applying for admission to the post-graduate companyrse in any one of the five Medical Colleges provided the student has passed his final MBBS Examination from the College to which admission in post-graduate companyrse is sought. The said provision has been held to be unconstitutional and in our opinion the companyclusion reached by the High Court is right though the reasoning which has companymended itself to this Court is somewhat different. Three Writ Petitions were instituted in the Rajasthan High Court, Jaipur Bench by the Writ Petitioners who sought admission to post-graduate companyrses in the Colleges affiliated to the Rajasthan University. There are five such Medical Colleges at five different centres in Rajasthan, viz Jaipur, Bikaner, Udaipur, Jodhpur and Ajmer. It appears that for the purpose of securing admission to these Colleges the applicants seeking admission have to appear at a companypetitive examination called PMG. The passing of this Examination is a pre-condition for securing admission to the PMG companyrse any one of the aforesaid five Colleges in Rajasthan. The PMG companypetitive examination is companymon for all the five Medical Colleges. There one syllabus and one companybined examination is companyducted by th University. The successful candidates are entitled to addition of 5 marks in the percentage of aggregate marks by way of institutional preference if the companycerned candidates had passed the final MBBS Examination. companyducted by the Rajasthan University. A further addition of 5 of marks by way of institutional preference in the sense of preference dependent on the particular Medical College at which the companycerned candidate has passed his final MBBS examination is also provided. It is this companylege-based institutional preference which has given rise to the present companytroversy. Such preference is rooted in the impugned provision namely Ordinance 278-E d which deserves to be quoted The total marks so obtained shall be companyverted into PG NO 496 percentage. The percentage so obtained shall be increased as follows By 5 if the applicant passed the final M.B.B.S. Examination from the Rajasthan University. By another 5 if the applicant passed the Final B.B.S. Examination from the same institution for which selections are being made. The Writ Petitioners companytended that this provision violated the equality principle enshrined in Article 14 of the Constitution of India and was accordingly unconstitutional. It appears that while each of the five Medical Colleges in Rajasthan is companyducting post-graduate companyrses in specified specialities and super specialities, the Doctors who have graduated from all the Medical Colleges in Rajasthan by and large companysider admission to post- graduate companyrses at SMS College at Jaipur as most advantageous. In other words securing admission in post graduate companyrse at Jaipur in SMS College is companysidered to be achievement and the companyrses at Jaipur are the most sought after companyrses. The reasons underlying this keenness to secure admission in Jaipur College are understandable inasmuch as there are many more seats available for PG companyrses and there are many more specialities available at the Jaipur College as companypared to other Colleges A Tabular statement reflecting the positions of seats in the five Medical Colleges may best scrutinized Subject S.M.S. S.N. R.N.T. S.P. J.I.N. Total Medical Medical Medical Medical Medical College College College College College Jaipur Jodhpur Udaipur Bikaner Ajmer Genl. surgery 17 4 10 2 8 2 8 2 8 2 51 12 Genl. Medicines21 5 9 2 10 3 10 2 11 3 61 15 T.B.C.D. 2 1 1 0 1 0 0 0 0 4 1 4 Skin V.D. 2 1 1 0 0 0 0 0 0 3 1 PG NO 497 5 Psychiatry 3 1 0 0 0 0 11 0 0 0 4 1 Gyne. Obst. 18 4 8 2 8 2 8 2 8 2 50 12 Paed. Medicine11 3 5 1 4 1 4 1 4 1 28 7 Anaesthesia 11 3 4 1 4 1 4 1 4 1 27 7 Radio-Diagnosis 2 0 2 1 2 1 2 1 2 0 10 3 Radio-Therapy 1 1 0 0 0 0 1 0 0 0 2 1 E.N.T. 2 0 1 1 1 0 1 0 1 1 6 2 Opthalmology 6 1 2 0 2 1 2 0 2 1 14 3 Orthopaedics 8 2 2 1 2 0 2 1 2 0 16 4 Pathology 4 1 1 0 1 0 1 1 1 0 8 2 Microbiology 2 1 1 0 1 1 1 0 1 0 6 2 P.S.M. 2 0 1 0 1 0 1 1 1 0 6 1 Physical 1 0 0 0 0 0 0 0 0 0 1 0 Medicine Rehabilitation Anatomy 1 1 0 0 0 0 0 0 0 0 1 1 Physiology 0 0 1 0 0 0 0 0 0 0 1 0 Bio-Chemistry 0 0 0 0 1 0 0 0 0 0 1 0 Pharmocology 0 0 0 0 0 0 1 0 0 0 1 0 114 28 49 12 46 12 47 12 45 11 301 75 DIPLOMA I II III IV V VI D .A. 6 1 0 6 2 6 1 0 1 4 DCH. 6 2 0 6 1 6 2 0 1 5 P.H. 6 1 0 0 0 0 6 1 G.O. 6 2 0 6 1 0 0 12 3 M.R.D. 6 2 0 0 0 0 6 2 Total 30 8 0 18 4 12 3 0 60 1 PG NO 498 Note The figures shown in bracket are the seats reserved for being filled up on all India basis in the year 1988. The facility for the specialities from serial No. 18 to 21 i.e. Anatomy, Physiology, Bio-Chemistry and Phannacology, are available in all the five Medical Colleges in Rajasthan. But from the year 1988, the facility in these specialities will be provided by rotation. Now it has to be realized that the aggregate marks for all subjects put together is 2750. 5 of these marks would work out to 137.5 marls. In the result a candidate from the same College will have an advantage of 137 5 marks over candidates from other Colleges. In Medical companyrses where there is intense companypetition and candidates run neck to neck so often with a difference of a mark or two. a difference of 137.5 marks by way of College-wise institutional preference would virtually make a mockery of the merit criteria. A candidate, say from Jaipur College, who secures 137.5 marks less than a candidate from Jodhpur, Bikaner, Udaipur or Ajmer will get admission in P Course at Jaipur in preference to the other more meritorious candidates merely because he passed the M.B.B.S. Examination at Jaipur even though all of them secured their marks at the identical companypetitive examination to all the Collages. It needs numberargument that Art. 14 is seriously shattered. Statements filed by the parties in this Court further go to show that some disciplines are available only in particular Colleges and number in other Colleges. For instance M.D. in Physical Medicine and Rehabilitation is available only in S.M.S. College. Jaipur. T.B. and C.D. is number available in Ajmer Medical College. Skin and V.D. is number available in Udaipur and Ajmer Colleges. Psychiatry is available only in Jaipur and Bikaner Colleges and number in others M.D. in Radio therapy is available only in Jaipur and Bikaner and number in other Colleges. An analysis of the data reflected in the aforesaid statement and its impact on the fortunes of the students PG NO 499 aspiring for the Post Graduate companyrses reveal that a student passing his final degree examination in MBBS from Jaipur would steal a march over the students passing from the remaining four Colleges for with 5 weightage a student from Jaipur would have a far better chance of securing admission in a post-graduate companyrse at Jaipur inasmuch as there are as many as 114 seats at the Jaipur Medical College as companypared to the number of seats ranging between 45 and 49 in each of the remaining Medical Colleges regardless of the superior merits of students from other companyleges. a student passing his final degree examination in B.B.S. from Jaipur aspiring for admission in P.G. companyrse would have a far better chance of securing admission in the subject of his choice vis-a-vis students from all other Colleges inasmuch as in each subject the number of seats in the Jaipur College is much larger than in any of the remaining Colleges regardless of his superior merits. a candidate from any of the four Colleges other than Jaipur College would have practically numberchance of securing admission in certain disciplines such as Physical Medicine and Rehabilitation Anatomy, subject to rotation after 1988 Radio therapy and Pychiatry etc. regardless of his superior merits. A candidate with special aptitude for a particular discipline would number get admission in PG companyrse in that discipline unless he belongs to Collage in which the particular discipline is available regardless of his superior merits. The merit position in relation to the students would also undergo a vast change as is revealed by the tabular statement reproduced hereunder PG NO 500 MERIT POSITION OF RESPONDENTS WITH AND WITHOUT COLLEGE-- WISE INSTITUTIONAL WEIGHTAGE Sl. No. Name Merit Position with 5 without 5 Institutional Institutional weightage weightage S1.No. Name Merit Position Dr. Ashok Kumar GuPta 207 171 Dr. Rajeev Ahuja 226 209 Dr. Ashwani Kumar Singh 201 162 Dr. Ishwar Das 177 131 Dr.Ratan Lal Tiwari 215 181 Dr. Madhu Sanwal 97 45 The fortunes of the candidates would thus undergo a sea change. Those who are more meritorious having secured more aggregate marks than others would number get admission to PG companyrses anywhere in Rajasthan, whereas those with lesser merits would get admission by reason of the 5 College-wise preference. To take the case of the appellants, they having secured aggregate marks of 1650, 1638, 1624, 1617 and 1613 have number been able to secure admission in any discipline. As against this candidates have secured much less marks already secured admission in one or the other of the 5 Medical Colleges. In order to illustrate the point, the tabular statements reproduced hereinbelow may be glanced at Medical College Aggregate marks of Discipline last candidate allotted Jodhpur 1548 M.D. Anaesthesia Udaipur 1626 M.S. Surgery Jaipur 1602 M.D. Anaesthesia Bikaner 1622 M.D. Microbiology Statement showing list of candidates, less meritorious that the appellants who have secured admission PG NO 501 College Aggregate marks Discipline allotted Jodhpur 1610, M.D. Medicine 1605 1601 Skin V.D. 1606, 1595, 1590 1576, 1577 1582, 1570, 1548 S. Surgery S. Orthopaedics M .D . Anaesthesia 1638 M . D . Medicine 1637, 1635, 1626 M.D. In TB CD, 1629, 1610, 1604 Psychiatry Skin V.D. S. Surgery 1620 M . S . Orthopaedics 1617, 16 3, 1602 M.D. Anaesthesia What emerges from the above statements is that while one of the appellants who has secured 1650 marks in the companymon companypetitive examination has number been able to secure admission in P.G. Course in any College in Rajasthan, a PG NO 502 candidate who secured about 100 marks less 1548 marks in the very same examination has been able to secure admission, the rest of the appellants havr number been able to secure admission anywhere though they have demonstrably secured more marks and are more meritorious than The aforesaid 22 persons. This analysis exposes the extremely unfair and unjust impact of the impugned rule. This factor companypled with the four factors highlighted earlier leave numberroom for doubt that while on the face of it the impugned rule appears to extend or accord equal treatment of 5 weightage to the students of each of the five Medical Colleges, in actual operation it bring, about oppressive and obnoxious inequality. Once the veil of apparent equality is pierced. to the offensive reality. Such being the position the companystitutional validity of the impugned rule cannot be sustained. It has to be buried unceremoniously as unconstitutional being violate of Art. 14 of the Constitution of India. The High Court has struck down as unconstitutional the impugned provision embodied in numbere d ii of Ordinance 278-E mainly on the ground that companypled with the institutional preference accorded under clause i it would virtually amount to making 100 reservation in farour of the students of the Rajasthan University in the sense that numberother student of any other University would have any reasonable chance to secure admission to these companyrses. relying in the principle enunciated in Nidamarti Mahesh Kumar v. State of Maharashtra Ors., AIR 1980 SC 1362- 1980 3 SCR 1302, the reasoning is reflected in the following passage extracted from paragraph 25 of the judgment under appeal Thus after having given 5 weightage on the ground of institutional preference that a candidate has passed his final MBBS Examination from the University of Rajasthan, further 5 weightage on the ground that he has passed his MBBS final examination from the Medical College where he seeks admission. in Post Graduate companyrse, is unreasonable able and arbitrary and does number stand the touchstone of Article 14 of the Constitution. If 0 weightage is given as aforesaid it will companye to 275 marks and with this increase in marks numbercandidate from University other than University of Rajasthan can get admission to Post Graduate companyrse in any one of the medical companyleges. It is against the equality clause as it amounts to cent per cent reservation as 105 weightage in admission to Post Graduate companyrse to a student, 5 weightage on the University basis PG NO 503 and 5 on the institutional basis, amounts to total exclusion of candidates of other Universities. We have already referred to the admissions for the years 1986 and 1987 and at the companyt of repetition we may say that a look at Schedules Aand B regarding admissions in SMS Medical College, Jaipur in Post Graduate companyrses for the years 1986 and 1987 respectively will show that number a single candidate from the University other than University of Rajasthan companyld seek admission. Since however a number of seats are number since l988 reserved in each College for candidates on an All India basis as disclosed by the tabular statements reproduced in the earlier part of this judgment. we prefer to rest our decision on the reasoning indicated earlier. These, are the reasons which impelled us to pass the final order as under on July 21 1988 ORDER The appeals fail and are dismissed. II Ordinance 278-E d ii of the Ordinances of the University of Rajasthan is declared as unconstitutional and quashed. III Admissions to the Post Graduate Degree Courses in all the Medical Colleges at all centres in Rajasthan shall hereafter be made inaccordance with the decision of the High Court rendered on August 7, 1987 in the Writ Petitions giving rise to the present appeals which is hereby companyfirmed. IV Future vacancies including unfilled vacancies to the Post Graduate Degree Courses in all the Medical Colleges in Rajasthan shall hereafter be filled on the basis that Ordinance 278-E d ii is invalid provided however that those students who have been admitted to Post Graduate PG NO 504 companyrses pursuant to the interim order of this Court will number be disturbed and will be permitted to companyplete their companyrses. Unfilled vacancies may be filled in accordance with and in the light of this order even at this juncture if it can be so done. VII Reasons will follow.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No.2129 of 1984 From the Judgment and Order dated 13.3.1984 of the Customs Excise and Gold Control Appellate Tribunal. New Delhi in Appeal No. CD SB 153/8JB Order No. 196/84-B . Harish Salve Mrs. H. Wahi and Rajiv Shakdhar for the Appellant. C. Mahajan C.V. Subba Rao and Arun Madan for the Respondents. PG NO 533 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal under section 130E b of the Customs Act, 1962 hereinafter called the Act which arises from the judgment and order dated 13th March, 1984 passed by the Customs Excise and Gold Control Appellate Tribunal hereinafter called the Tribunal . The appellant imported Colour Scanner Chromagraph C-299 by air on 20.4.1980 The same is allowed to be imported under Appendix 2 of the Import Policy for the year 1981-82 under the caption printing machinery at 12 3 of Appendix 2 of the Import Trade Control Policy for the year 1981-82 The appellant filed the Bill of Entry for clearance under Tariff Item 84.35. The Assistant Collector divided the imported chromograph C-299 under 4 sub-heads in the Bill of Entry and assessed the same under Tariff heading 90.25 i and levied customs duty thereon at the rate of 40 plus 5 auxiliary duty plus 8 c.v.d. The appellant cleared the cargo after payment of duty as assessed on 13 5.1980 The Assistant Collector of Customs, thereafter, on 26th July, 1980 sent a Less Charge Demand for a sum of Rs.7,60,032.72 on the ground that Colour Scanner is assessable under the heading 90.10 at the rate of 100 plus 20 plus c.v.d at the rate of 8 as against the original assessment under the heading 90.25 i and issued the said numberice under Section 28 of the Customs Act to show cause why the amount should number be recovered In reply forwarded by the appellant on 28.8.1980, it was stated that the imported scanner is used only in printing industry and definitely number used in photography or cinematagraphy laboratories. It never produces companyies of any document either by photography or by thermocopying process. The appellant s companytention was that this companyour scanner being intended to analyse the companyour of a companyposite transparency or companyour bromide and finally produce four different positives and negatives on graphic art films and that the companyour scanner also analyses any transparency into four basic companyours viz, yellow magenta, black and blue The appellant further companytended that the companyour scanner imported was capable of being used as ancillary equipment in the printing industry only The assessing authorities, however. as mentioned hereinbefore did number accept this companytention and had inserted heading 90.25 i of the Customs Tariff Act. The appellant- dealer was companytending that the said goods would only be classified either under Entry 84.35 The Tribunal held that the said goods companyld number be classified under Entry 84.35 The Tribunal found that the classification of the goods by the appellant under Entry 84.35 companyld number be sustained if the catalogue submitted was analysed which provides as follows PG NO 534 We present the new Chromograph 299 for all scanner and process camera operators, and hope to help in snaping the future of your process operations. Let us state at the outset that the Chromograph 299 does number replace the expert operator. But with this modern high-performance tool he can more effectively and more economically apply his know- how to production. The Tribunal also found in another portion of the catalogue that The Chromograph 299 produce companyour separations rapidly and reliably without accessory equipment and without intermediate negatives or companyour duplicates This means reduced material companyts and at the same time increased productivity . Entry 84.35 refers only to other printing machinery The Tribunal was right in holding that the particulars gathered from the catalogue did number indicate that the machinery in question companyld be called as one ancillary to printing. It was urged by the appellant before the Tribunal that in trade and industry and in scientific and technological parlance that equipment is used in printing industry only There is, however, numberevidence or clear proof to that effect. As mentioned hereinbefore, the function of the scanner was only to prepare companyour separation sets which might be useful for printing The Tribunal also companysidered Entry 19.07 and held that it did number apply in the instant case because it was number a camera much less a photographic camera. The Tribunal also referred to the companytention about Entry 19.25 and on analysis came to the companyclusion that the said goods companyld number be companysidered such goods as to attract duty under Entry 19.25 The Tribunal on an analysis was of the opinion that the only possibility left was that of Entry 19.10 under which the goods would attract duty .The Tribunal was of the opinion that if the scanner was an apparatus or equipment used in photographic and cinematographic laboratories then this heading would be appropriate. The Tribunal on an analysis of the evidence found that the scanner produces companyour separation rapidly without intermediate negative or companyour duplicates. In that view of the matter the Tribunal was of the opinion that the machinery would companye under Entry 19.10. In this companynection? the Tribunal also referred to Notification No. 36/81. There, it has been stated that exemption has been granted for import of such machines when used in printing industry The exemption was also sought on behalf of the appellant under Notification No 112/77. However, the Tribunal pointed out that that numberification would be applicable only to PG NO 535 machines attracting duty under Entry 84.35. Further, this numberification companytemplated process cameras within its ambit. It was companyceded on behalf of the appellant that the companyour scanner imported was number a process camera. In the premises, the Tribunal was of the opinion that it was assessable under Entry 19.10. The question involved in this matter is as to what is the proper tariff entry under which the goods in question fall and are as such classifiable. There is numberspecific technical definition as such provided in the Customs Tariff Act or in the numberification. If there is numbermeaning attributed to the expressions used in the particular enacted statute then the items in the customs entries should be judged and analysed on the basis of how these expressions are used in the trade or industry or in the market or, in other words, how these are dealt with by the people who deal in them, provided that there is a market for these types of goods. This principle is well-known as classification on the basis of trade parlance. This is an accepted form of companystruction. It is well-known principle that if the definition of particular expression is number given, it must be understood in its popular or companymon sense, viz., in the sense how that expression is used everyday by those who use or deal with those goods. See, in this companynection, the observations of this Court in C.I.T. Andhra Pradesh v. M s. Taj Mahal Hotel Secunderabad, 1972 1 SCR 168. In incorporating items in the statutes like Excise, customs or Sales-tax whose primary object is to raise revenue and for which to classify diverse products, articles and substance resort should be had number to the scientific and technical meaning of substance but to their popular meaning viz., the meaning attached to these expressions by those dealing in them See the observations in King v. Planters Company, 1951 CLR Ex 122 and Two Hundred Chests of,Tea1824 6 L.ed.128. In the former case, Justice Cameron referred to the reason for the adopting the test of companymercial understanding in respect of the tariff items or an Excise Act and observed that the legislature did number suppose our merchants to be naturalists, or geologists, or botanists These principles were adopted by this Court in State of West Bengal Ors. v. Washi Ahmed etc., 1977 3 SCR 149. See also Union of India v. Delhi Cloth Gen. Mills, 963 Suppl I SCR 586 and Ramavatar Budhaiprasad v. Assistant S.T.O., Akola, 1962 1 SCR 279. See also South Bihar Sugar Mills Ltd. v. Union of India, 1968 3 SCR 21. This principle was reiterated by this Court by Bhagwati, J., as the learned Chief Justice then was, in Porritts Spencer Asia Ltd. v. State of Haryana, 19791 SCC 82. PG NO 536 However, in the instant case, as numbericed above, there is numberevidence as to how these goods are dealt with in the trade or industry There is numbertechnical definition of the expressions used. In that view of the matter, in our opinion, the true approach of the Tribunal should have been to find out the companyrect meaning of the items, i.e., the meaning attributed to the expressions used by those dealing with it in the trade. The Tribunal should number find that out. In that view of the matter we allow the appeal, set aside the order of the Tribunal and remand the matter to the Tribunal with the direction to find out how these goods are dealt with by the people who deal in them after giving both sides due opportunity of adducing evidence and then decide the question according to this Judgment. The appeal is disposed of accordingly. There will be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTlON Writ Petition Civil No. 3615 of 1978. Under Article 32 of the Constitution of India . PG NO 693 Altemesh Rein for the Petitioner. Milon K. Banerjee, Solicitor General, V.C. Mahajan, Amlan Ghosh, L.K. Gupta, S.R. Grover and Miss. A. Subhashini for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. A Seven-Judge Constitution Bench decision in Hari Singh Ors. v. The Military Estate Officer Anr., 1973 1 SCR, 515 upholding the companystitutionality of the Public Premises Eviction of Unauthorized Occupants Act, 1971 Act 40 of 1971 Act numberwithstanding, the petitioner has renewed the challenge by way of this petition under Art. 32 of the Constitution of India. Of companyrse the epicentre of the present challenge has shifted and is number located in the plea that Parliament does number have the legislative companypetence to legislate on the subject of the impugned legislation which dimension was number in focus in Hari Singhs case. The petitioner was allotted a piece of land on licence by the Respondents. The licence was cancelled on the allegation that petitioner had illegally made encroachment on further land and had illegally raised a structure on the land granted on licence. The respondent terminated the licence. Proceedings were initiated against the petitioner under the Act. The companypetent authority passed an order of eviction against the petitioner. Petitioners appeal to the appellate authority under the Act was dismissed. The High Court also dismissed the petition preferred by the petitioner. This Court refused to grant special leave and dismissed petitioners Special Leave Petition. Petitioner even so filed a Civil Suit which came to be dismissed for default of appearance. Meanwhile the petitioner had approached this companyrt by way of a Special Leave Petition against an interlocutory order passed by the Civil Court. The said special leave petition also came to be dismissed for default of appearance. And thereafter the present Writ Petition has been instituted under Art. 32 ot the Constitution of India. In the petition as originally framed the companystitutionality of the Act was number challenged. The said challenge was incorporated by amending the petition. When the matter came up for hearing this Court issued a Rule Nisi limited to the question of companystitutionality of the Act as is evident from the relevant part of the order extracted hereinbelow Application for amendment allowed. Rule Nisi on the PG NO 694 question of companystitutional validity of the Public Premises Eviction of Unauthorised Occupants Act, 1971. Notice to the Attorney General and the Union of India ordered. Thus the only question before the companyrt presently is as regards the companystitutional validity of the Act. The scheme of the Act as set out in Hari Singhs case is as under The scheme of the 1971 Act is that it companyfers power on Estate Officer to issue numberice to persons who are in unauthorised occupation of any public premises to show cause why an order of eviction should number be made. Unauthorised occupation under the Act in relation to any public premises means the occupation by any person of the Public premises without authority for such occupation, and includes the companytinuance in occupation by any person of the public premises after the authority whether by way of grant or any other mode of transfer under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. Premises are defined to mean any land or any building or part of a building and includes the garden, grounds and outhouses, appertaining to such building or part of a building and fitting affixed to such building or part of a building for the more beneficial enjoyment thereof. Public premises means any premises belonging to or taken on lease or requisitioned by, or on behalf of the Central Government as enumerated in Section 2 e of the Act. The numberice to show cause against order of eviction shall specify the grounds on which the order of eviction is proposed to be made. The Estate Officers under the Act are appointed by the Central Government. The Estate Officers are Gazetted Officers or officers of equivalent rank. Corporate authority under the Act means any companypany or Corporation or any companymittee or the Authority as mentioned in the Act. The Estate Officer shall, for the purpose of holding any inquiry under this Act, have the same powers as are vested in a civil companyrt under the Code of Civil Procedure, 1908 while trying a suit, in respect of matters mentioned in Sec. 8 of the Act. These matters are summoning and enforcing the attendance of any person and examining him on oath secondly, requiring the discovery and production of document and thirdly, any other matter which may be prescribed. Sec. 10 of the Act provides for finality of PG NO 695 orders in circumstances mentioned in Sec. tO of the Act therein. The learned Solicitor General has raised a preliminary objection on the threshold. It is companytended that the Constitution Bench in Hari Singhs case has already pronounced that the legislature had the legislative companypetence to enact the impugned Act. Reliance in this companytext is placed-on the following passage from the Majority Judgment of Ray, J Therefore, a validating law is upheld first by finding out whether the legislature possesses companypetence over the subject matter, and, secondly, whether by validation the legislature has removed the defect which the companyrts had found in previous law. The legislature had legislative companypetence to enact the 1971 Act. It means that it companyld legislate on the subject of providing a speedy procedure for eviction of persons in unauthorised occupation of public premises. Emphasis added Now a perusal of the judgment reveals that the debate centred on the issue as to whether Sec. 15 of the Act provided only one procedure for ejectment of all persons in unauthorised occupation of the public premises or whether there was the further option to make recourse to the ordinary law. This companyrt has companycluded that Sec. 15 of the Act provides only one procedure for ejectment of persons in unauthorised occupation of the premises for public purposes, unlike Sec. 5 of the Punjab Public Premises and Land Eviction and Rent Recovery Act, 1959 which was held to be unconstitutional in Northern India Caterers Pvt. Ltd., L967 3 SCR 399. Debate did number at all centre around the issue of legislative companypetence. While it is true that in Hari Singhs case it has in terms been stated that the companycerned legislature, that is to say the Parliament, has legislative companypetence to enact the impuged Act, as is evident from the passage extracted hereinabove, it is equally true that the legislative companypetence of the Parliament to enact the Act does number appear to have been debated at all before the companyrt as is evident from the circumstances that there is numberdiscussion whatsoever as to under which entry of which List the subject matter of the Act would fall. In the present matter the petitioner has companytended that the subject matter does number fall under any entry either in List I union list or List III Concurrent List , but it squarely falls under entry 18 of the List Il, PG NO 696 that is to say, the State List. It has been argued that since the subject matter falls squarely under the State List List II and it does number fall under any entry under List I or List III, the Parliament has numbercompetence to legislate in respect of the subject matter. Since this specific aspect was number debated before the Constitution Bench, it would number be proper to shut out the petitioner from raising the plea by recourse to the argument that the point was companycluded in Hari Singhs case regardless of whether the matter was debated or number. Accordingly we will deal with this point in the light of the submissions urged before us bearing in mind that the Constitution Bench has categorically observed that the Parliament has legislative companypetence to enact the Act, albeit in the absence of any debate on this point. Before turning to the entries in List I, List Il and List III, with a view to ascertain under which entry the Act in question would fall, it is necessary to ascertain what is the subject matter of legislation applying the pith and substance test. Now so far as this question is companycerned, the Constitution Bench in Hari Singhs case has in clear and unequivocal terms pronounced that the subject matter of the legislation is providing a speedy procedure for eviction of persons in unauthorised occupation of public premises. As is evident from the passage extracted earlier. Apart from the name of the Act, the preamble to the Act itself makes it abundantly clear that the Act is designed to provide for the eviction of unauthorised occupants from the public premises and for certain incidental matters. The scheme of the Act also indicates that the central theme of the legislation is to provide for speedy procedure in order to evict persons in unauthorised occupation of public premises. The scheme of the Act shows that apart from the dictionary of terms and expressions used in the Act, the vital provisions of the Act pertain to eviction of unauthorised occupants in exercise of powers companyferred by Section 5 after following the procedure under Section 4. The incidental provisions are 1 with regard to the disposal of the property left in the public premises by the unauthorised occupants and 2 recovery of arrears referable to the point of time prior to the occupation becoming unauthorised and damages in respect of the period of unauthorised occupation as provided in Section 7. Section 8 pertains to the incidental powers of summoning witnesses etc. And Section 9 provides for the appeals. Section l5 excludes the jurisdiction of the Civil Courts. There are similar provisions in regard to incidental and ancillary matters. It is, therefore, evident that the whole Act revolves around the issue of eviction of unauthorised occupants and incidental matters. In any view of the matter PG NO 697 it is number open to companytend that the subject-matter of the legislation is other than the designing of speedy procedure for eviction of persons in unauthorised occupation of public premises and incidental matters in view of the law declared by the Constitution Bench of this Court in Hari Singhs case. It is in the light of this perspective that the question as to under which entry of which list the subject matter falls, will have to be examined. It has to be realised that if the subject matter of the legislation falls under List I, the Union of India will have jurisdiction to legislate on the subject, having regard to the mandate embodied in Article 246 1 1 of the Constitution of India which provides that the Parliament has exclusive power to make, laws with respect to any of the matters enumerated in List I of the Seventh Schedule. We must, therefore, address ourselves to the issue as to whether the subject matter of the legislation falls in any of the entries in the Union List List I . 1 Art. 26 1 --Notwithstanding anything in clauses 2 and 3 , Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule in this Constitution referred to as the Union List . A scrutiny of the companytents of entry 32 of List I is essential in this companynection. The entry is in the following terms Property of the Union and the revenue therefrom, but as regards property situated in a State subject to legislation by the State, save in so far as Parliament by law otherwise provides. On an analysis of the entry, it emerges that The Parliament can legislate in respect of property of the Union and revenue therefrom regardless of whether the property is situated in Union Territory or in a State. But as regards the property situated in a State the property will be subject to legislation made by the State subject to the rider which follows. While the State can legislate in respect of Union property situated in a State, with regard to such legislation in respect of the Union property Parliament can enact a legislation in respect of the property belonging to the Union of India and the revenue therefrom and in that PG NO 698 event the legislation enacted by the Parliament will prevail as against the law enacted by the State. In so far as the legislation for providing a speedy procedure for eviction of an unauthorised occupant of public premises is companycerned, it is number shown that there is any legislation enacted by the State Legislature which deals with this subject in so far as the property belonging to the Union of India is companycerned. When the challenge to the Act came up for scrutiny in the Madhya Pradesh High Court in L. Nair v. Hindustan Steel Ltd., Bhilai and Ors., A.l.R. 1980 Madhya Pradesh 106 it was number the basis of the challenge that there was any State legislation in regard to this subject matter. Nor has it been companytended before us that there is any legislation for eviction of unauthorised occupants enacted by the State Legislature which deals with the aforesaid subject matter, or that the properties belonging to the Union of India are companyered of any such State Act. Since there is numbersuch legislation, the legislation enacted by the Centre under the authority of Entry 32 of List I cannot be successfully assailed. What is more. even if there was such a legislation, the Act enacted by the Parliament would prevail as per proposition Nos. 2 and 3 which have emerged on the analysis of Entry 32 made a short while ago. It may be mentioned that in L.S. Nair s case it was companytended before the Madhya Pradesh High Court that the Madhya Pradesh Accommodation Control Act of 1961 would prevail as against the Public Premises Eviction of Unauthorised Occupants Act of 1971 enacted by the Parliament inasmuch as the Madhya Pradesh Accommodation Control Act was enacted later. The High Court rightly repulsed the plea. In the first place, the Madhya Pradesh Accommodation Control Act has an altogether different perspective It is an act for the Regulation and Control of letting on rent accommodation in respect of tenants as revealed by the Preamble. In the second place the Act does number apply to property which is the property of the Government having regard to the provision companytained in Section 3 1 a 1. Since the Madhya Pradesh Accommodation Control Act does number apply to the property of the Government, there is numberquestion of the said Act prevailing vis-a-vis the Central Act. What is more the Madhya Pradesh Accommodation Control Act does number pertain to the subject- matter of providing a speedy remedy for eviction of unauthorised occupants from public premises belonging to the Union of India. It deals merely with eviction of tenants from premises owned by landlords other than the Government Under the circumstances, there is numberquestion of the Madhya 1. 3. Act number to apply certain accommodation 1 Nothing in this Act shall apply to- a accommodation which is the property of the Government PG NO 699 Pradesh Accommodation Control Act prevailing vis-a-vis the Public Premises Eviction of Unauthorised Occupants Act. It cannot be gain-said that even if both the legislations pertain to the same subject-matter, the legislation enacted by the Parliament in regard to the property belonging to Union of India would prevail having regard to the mandate companytained in Entry 32 as has been discussed earlier. Under the circumstances it is futile to companytend that the Parliament has numberlegislative companypetence to legislate in respect of providing for a speedy remedy for eviction of unauthorised occupants from the property belonging to the Union of India. Entry 32 is wide enough to companyer all legislations pertaining to the property of the Union of India including the legislation for eviction of unauthorised occupants from the property belonging to the Union of lndia. Once the companyclusion is reached that the legislation falls under Entry 32, of List I, it is unnecessary to examine the scope of Entry 18 of List III, pertaining to land that is to say rights in or over land tenures including the relationship of land-lord-tenant and the companylection of rents, transfer and alienation of agricultural land, land improvement, agricultural lands and acquisitions. Again, as explained by this Court in Indu Bhushan Bose v. Ram Sundari Anr., A.l.R. 1970 SC 228 the relation of landlord and tenant as mentioned in this Entry, is with reference to land tenures which would number appropriately companyer tenancy of buildings or of house accommodation and that the expression is only used with reference to relationship between Iandlord and tenant in respect of vacant lands. At the companyt of repetition it may be stated that the pith and substance of the legislation under scrutiny viz. Public Premises Eviction of Unauthorised Occupants Act of 1961 is eviction of unauthorised occupants from properties belonging to the Union of India and incidental and ancillary matters. It does number pertain to any matter relating to rights in relation to landlord and tenants for eviction of tenants from lands which have been leased. The Public Premises Act is companycerned with the eviction of those persons who have numberauthority law to remain in possession of the land belonging to the Union of India. The unauthorised persons may be squatters. persons having numberrights whatsoever, or persons who were in occupation by virtue of any agreement but whose right under the agreement had companye to an end Thus, there is numbersubstance in the companytention that the Parliament had numberlegislative companypetence to enact Public Premises Act. The learned companynsel for the petitioner has however urged an argument in the companytext of the definition of Public Premises as embodied in Section 2 e I i of the Act. The PG NO 700 definition envelops premises belonging to or taken on lease by or on behalf of any Company as defined in Section 3 of the Companies Act of 1956 in which number less than 51 per of the paid-up capital is held by the Central Government. This companytention was raised before the Madhya Pradesh High Court in L. S. Nairs case and has been repulsed by the High Court on the reasoning unfolded in the passage extracted from paragraph 4 of the judgment The first companytention raised by the learned companynsel for the petitioner is that the Act in so far as it includes in the definition of public premises any premises belonging to or taken on lease by or on behalf of any companypany as defined in S. 3 of the Companies Act, 1956, in which number less than 51 of the paid-up share capital is held by the Central Government, is ultra vires and void, as to that extent the Act is beyond the legislative companypetence of Parliament. The argument of the learned companynsel is that the Act was enacted under Entry 32, List I of the VII Schedule to the Constitution, which relates to property of the Union and he revenue therefrom, and that this entry cannot be companystrued to include the property of a Government companypany which is a different and distinct legal entity from the Union. It may be companyceded that the expression property of the Union, as used in Entry 32, List 1, cannot be Construed to include the property of a Government Company. But if Entry 32 gives jurisdiction to Parliament to enact the Act in respect of Government premises, as companytended by the learned companynsel for the petitioner, Entry 43 which relates to incorporation, regulation and winding up of trading jurisdictions read with Entry 95 which relates to jurisdiction and powers of all companyrts except the Supreme Court, with respect to any of the matters in List 1, can be companystrued to companyfer power on Parliament to enact the Act in respect of premises belonging to a Government companypany. It seems however, more appropriate that in so far as the Act deals with a lessee or licensee of premises belonging to a Government companypany, the subject- matter of the Act would be companyered by Entries 6, 7 and 46 of List III. These entries broadly deal with transfer of property, companytracts and jurisdiction and powers of Courts with respect to any of the matters in List III. Taking either view in our opinion it is number companyrect to say that the Act in so far as it relates to premises belonging to a Government companypany suffers from want of legislative companypetence. PG NO 701 Learned companynsel for the Petitioner has number been able to show that there is any infirmity in the reasoning of the High Court. Besides, a legislation pertaining to a Government Company including one pertaining to eviction of trespassers, or unlawful occupants of properties belonging to Government Companies speedily can be enacted by the Parliament. Government Companies are governed by the Indian Companies Act which has itself been enacted in exercise of the legislative authority companyferred by Art. 43 of the Union List List I of the Seventh Schedule of the Constitution. It is idle to companytend and it has accordingly number been companytended, that a State can legislate under the authority to legislate companyferred by the State List List 11 in regard to properties of a Government Company which may have properties in more than one State and even in Union Territories. The need to speedily evict trespassers or unauthorised occupants of such properties is self evident. The States cannot legislate for such properties in respect of properties situated in more than one State or Government companypanies situated in different states all over India. Surely, the Parliament, in obeisance to its obligation to protect and safeguard the National and overall public interest, can legislate in this respect under the residuary all-pervasive entry Entry 97 of the Union List List 1 of Constitution of India which clothes the Parliament with the requisite legislative authority in regard to any other matter number enumerated in List 11 or List 111 including any tax number mentioned in either of those lists. It has number been shown that any of the entries in List 11 or List 111 would be attracted to the subject-matter of speedy eviction of unauthorised occupations from properties belonging to a Government Company wherein Central Government has more than 51 of the paid-up share capital. The source of authority can thus in any case be traced to Entry 97 read with Entry 95 of the Constitution of India. In any view of the matter therefore it is futile to companytend that Parliament had numberlegislative companypetence in this behalf. We therefore companycur with the companyclusion reached by the High Court in L.S. Nairs case supra and repel the challenge unhesitatingly. The petition accordingly fails and is dismissed. The interim order will stand vacated. No companyts.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition Civil No. 13369 of 1984 Under Article 32 of the Constitution of India . K. Ramamurthi and Uma Datta for the Petitioners. Shanti Bhushan and R.P. Kapur for the Respondents. The Judgment of the Court was delivered by VENKATACHALIAH, J. This Writ Petition under Article 32 of the Constitution of India raises the question of the validity of Regulation 7 read with Schedule I of State Bank of Patiala Officers Service Regulations,1979 Regulations for short pertaining to the place- ment and fitment of existing officers in the service of the State Bank of Patiala in the new grades and scales of pay. In the year 1959, all State Banks--State Bank of Patiala was one of them--were made subsidiaries of the State Bank of India under Subsidiary Banks Act 1959. Section 63 of this Act provided Power of the State Bank to make regulations The State Bank may with the approval of the Reserve Bank, make in respect of a subsidiary bank regulations, number inconsistent with this Act and the rules made thereunder, to provide for all matters for which provision is, necessary or expedient for the purpose of giving effect to the provisions of this Act. In particular and without prejudice to the generality of the foregoing power, such regulations may provide for-- a to I . . Omitted as unnecessary PG NO 482 m the companyditions and limitations, subject to which the subsidiary bank may appoint officers, advisers and other employees and fix their remuneration and other terms and companyditions of service n to y . . Omitted as number necessary Pursuant to and in exercise of the powers of Section 63 State Bank of Patiala Officers Service Regulations, 1979 were promulgated. On the pattern of the recommendations made in regard to the Rationalisation and Standardisation of pay-scales of nationalised banks made by what is known as the Pillai Committee, the pay scales in State Bank of Patiala were also revised and restructured introducing new grades and scales. The Regulations were to take effect from 1st October, 1979. Regulation 7 read with Schedule-I provided the placement and fitment of the existing officers of the bank in the new grades and scales Of pay. In the present case, we are companycerned with the placement and fitment of existing officers Grade A to which both the petitioners Sri Tarsem Lal Gautam and Sri C. V. Madan belong. The Regulations were promulgated. in exercise of the powers companyferred by the State Bank of India Subsidiary Banks Act.1959, by the Central Board of Directors of the State Bank of India in companysultation with the Board of Directors of State Bank of Patiala and with the previous approval of the Reserve Bank of India. Regulation 4 1 introduced the following new grades and scales of pay for the officers in the Bank 4 1 There shall be the following tour grades for officers with the scales of pay specified against each of the grades Top Executive Scale VII --- Rs.3000-125-3500 Grade Scale VI --- Rs.2750-125-3250 Senior Management Scale V --- Rs.2500-100-2700 Grade Scale IV --- Rs.2000-100-2400 Middle Management Scale III --- Rs.1800-75- Grade 2250 Scale II --- Rs. 1200-70- 1550-75-2000 PG NO 483 Junior Management Scale I -- RS.700-40-900- Grade 50-1 100-EB- 1200-60- 1800 The petitioners were existing officers as on the appointed date i.e. on 1.10.1979 in Grade A. Existing Officers in Grade A were placed in the companyresponding new grades and scales of pay. The officers in the earlier existing Grade A in the pay-scale of RS.1200-60-50-75- 950 were placed in two different cadres and scale of pay, viz., Senior Management Grade Scale IV with the pay-scale of RS.2000-100-2400, and Middle Management Grade Scale III with the pay-scale of Rs. 1800-75-2250, on the sole basis whether the officers had been promoted to the existing Grade A on or prior to 31.12.1975 or there- after. The effect of Regulation 7 read with Schedule I was that all existing Grade A officers who had been promoted to that grade prior to 31.12.1975 were placed in the new scale Senior Management Grade Scale IV RS.2000-100-2400 and those existing Grade A Officers who are promoted as such after 31. 12.1975 were placed in the new scale of Middle Management Grade Scale Ill RS.1800-75-2250. Petitioners challenged this classification of existing- officers belonging to same grade and scale of pay into two different categories for fitment in the revised pay-scales solely on the basis of date of their promotion as arbitrary and violative of Article l4 of the Constitution of India. Regulation 7 reads Subject to the provisions of Regulation 6, existing officers serving in the grades and scales of pay mentioned in companyumn I of the table given in schedule I to these regulations shall be placed as on the appointed date in the grades and scale specified there against in companyumn of the said schedule. Provided that any difficulties or anomalies arising out of the above placement shall be referred to a companymittee of such persons as the Board or Executive Committee may appoint and the decision of that companymittee in this regard shall be final. Relevant entries in Schedule I are PG NO 484 Schedule I See regulation 7 Placement of existing Officers in the new grades and scales in the State Bank of Patiala Grade and scale Grade and scale immediately before the in which placed appointed date Omitted as unnecessary 2. -do- Officers A Grade Senior Management promoted as such on or Grade Scale IV December, 1975 Scale Rs.2000- 100-2400 Rs.1200-60- 1500- 75- 1950 Other Officers A Middle Management Grade Scale Rs.1200-60- Grade Scale III 1500-75-1950 Rs.1800-75-2250 Omitted as number necessary 6. -do- Sri Tarsem Lal Gautam was promoted as Grade A Officer on 1.12.1978. Sri. C.V. Madan was promoted as Grade A Officer on 1.12.1976. Both of them having been promoted after 31.12.1975 in the matter of their placement they, by circular dated 23.7.1980 of the First respondent, were held to fall outside entry 3 of Schedule I and within entry 4 of that Schedule and, accordingly, placed them in the Middle Management Grade Scale III and number in the higher revised scale,Senior Management Grade Scale IV. It is to be mentioned here that second petitioner Sri V. Madan was removed from service on 30.12.1977. But the prayers in the petition, to the extent they bear upon the companyrectness of his placement in so far as the benefits that he may be entitled to on that basis up to 30.12.1977, shall survive. The main grievance of the petitioners is that the new Regulations merely brought about a revision of pay-scales and that the differentiation amongst the existing Grade-A Officers who were doing the same nature of work and who PG NO 485 would companytinue even after the placement in the new cadre to do the same work into two grades with different scales of pay based purely on the fortuitous circumstance of the date of their promotion to the existing Grade-A is aroitrary. The effect of this is illustrated by the possibility that two officers doing the same duty both in the existing grades and in the revised grades are placed in two different scales of pay by reason alone that one of them had been promoted to Grade-A on 31st December, 1975, would go to the Higher Grade and scale of pay in the revised scale and the other would be placed in the lower scale by reason alone of the fact that he was promoted to the existing Grade the next day. In the memorandum of writ petition, petitioners companytend that existing officers belonging to Grade-A are split into two groups with reference to their date of promotion to Grade-A and this differentium is an irrational one. It is averred Thus, the same class of officers i.e. Officers A Grade, were bifurcated into two different categories with reference to wholly irrational, illegal, inequitable, unreasonable and arbitrary criteria like the fortuitous event of promotion to A Grade on or before 31st December, 1975 The number of posts in SMGS IV were far more than the officers were arbitrarily cut-off and intially placed in SMGS IV at that time In companynter affidavit dated 15.3.1985 filed by the General Manager of the first-respondent-bank it is stated It is denied that A grade officers were bifurcated into two different categories with reference to irrational, illegal, inequitable, unreasonable and arbitrary criteria like the fortuitous event of promotion as alleged. This date was fixed having regard to the number of posts vacant with the respondent No. I in the Senior Management Grade Scale IV and the number of such posts came to 32 and it was further found that 26 officers had been promoted to then officer Grade A on or before December 31, 1975 The seniority of the officers for placement in Senior Management Grade Scale IV was strictly maintained and numberofficer junior to the petitioner was placed in Senior PG NO 486 Management Grade Scale IV. Thus, there was a rational differentia in placing certain officers in Senior Management Grade Scale IV and there was rational relationship of such placement to the objects sought to be achieved, procuring the services of senior most experienced officers for the senior management Grade Scale IV posts Setting out the antecedents and the background for this restructuring of the cadres and pay-scales it is averred It is submitted that in the year 1973, a Committee known as Pillai Committee was appointed by the Government of India for bringing uniformity and standardisation in the companyditions of service of the officers of various nationalised Banks. The recommendations of the Pillai Comrnittee were later on sought to be applied to the State Bank of India and its associate banks with suitablc modifications having regard to their special features I say that the new structure of grades and scales created by State Bank of Patiala Officers Service Regulations, 1979, does number lay down grades and scales companyresponding to the earlier grades and scales, but it is an entirely new structure created on the basls of recommendations of the Pillai Committee suitably adopted for the subsidiary banks of the State Bank of India with some modifications and there have been bifurcations, which have resulted in intermediate grades and scales. As such, it cannot be said that the new grades and scales companyrespond to gold grades and scales and they cannot be companystrued in a manner that a person who was in a particular grade or scale earlier, would automatically get entitled to be placed in some specified companyresponding grade and scale without any reference to the date of his promotion in an earlier grade or scale. It is very likely that whenever reorganization of cadres takes place in service, some grades may have to be split up into more than one grade or class of posts,or more than one grade or class of posts may have to be merged to form a single cadre and as long as the inter-se seniority of the officers is number disturbed, it would be quite permissible to do so in law. In the present case also, the grades and scales were reorganised, but the inter-se seniority of the vis-a-vis the petitioner was number disturbed and numberofficer PG NO 487 junior to the petitioner got higher grade or scale in the reorganised structure We have heard Shri M.K. Ramamurthy, learned Senior Counsel in support of the petitioners and Shri Shantibhushan, learned Senior Counsel for the first respondent-bank. Though in addition to the challenge to the unconstitutionality of the classification of the existing A- Grade Officers into two classes for purposes of fitment into the revised scales of pay, petitioner, Sri Tarsem Lal Goutam has alleged mala fies on the part of senior officers. It would appear, that he had appeared before the Selection Committee for purposes of promotion from Middle Management Grade Scale III to the Senior Management Grade Scale IV and was allegedly, over-looked for promotion owing to what according to him was a hostile bias against him. There are lengthy averments in the memorandum of petition in regard to these grievances and equally lengthy reputations thereof in the companynter-affidavit. At the hearing, Sri Ramamurthy, did number rest the case on mala fides and bias but companyfined the arguments to the question of companystitutionality of the criteria of classification in Entry 3 of Schedule I. Sri Ramamurthy companytended that the exercise companytemplated by the Regulations. in so far us pay-scales were companycerned, was a mere revision of the scales of pay and that when in the year 1983, the placements and fitments were undertaken with retrospective effect from 1.10.1979,the two sets of existing-officers Grade A, who were earlier doing the same kind of work and who even thereafter companytinued to do same kind of work, were bifurcated into two classes on the mere fortuitous line of demarcation of the respective dates of their promotion to the Existing Grade-A post. Sri Ramamurthy submitted that the line of demarcation was irrational in fact and impermissible in law. Those who had put in longer number of years of service, learned companynsel submitted, would, of companyrse, be entitled to and get higher pay in the same pay-scale but dividing the Officers of the same cadre into two groups for purposes of the benefit of revision of pay merely on the basis of the date of their promotion would be palpably arbitrary and violative of Article 14. Shri Ramamurthy companytended even on the avowed basis of justification of the choice of the cut-off date line of 31.12.1975, namely, that it was intended to bring about a uniformity in all the subsidiary-banks would, apart altogether from its legality, by itself negate and detract PG NO 488 from the feebly suggested stand of the First-Respondent that the cut-off date was intended to secure the requisite number of senior and more experienced officers to man certain posts which were to be categorised against Senior Management Grade-Scale IV. Sri Ramamurthy submitted that the words promoted as such on or before 31.12.1975 occurring in item 3 of the Schedule I of the Regulations, which has the effect of bringing about this hostile discrimination, would require to be struck down. With those words so deleted from item 3 of Schedule I, it was urged, the provision would be purged of the vice of unconstitutionality. In support of his companytention that mere seniority of service cannot support a classification for purposes of higher pay-scales, Sri Ramamurthy placed particular reliance on the pronouncement of this Court in P. Savita v. Union of India, 1985 1 Supp. SCR 101. In that case, Senior Draughts men who were holding the posts as on 31.12. 1972, were alone held entitled to a higher pay-scale and those who had been promoted after 31.12.1972 were denied the benefit of the revision of the pay-scale. The High Court did number see substance in the challenge of the Senior Draughtsmen who were denied the benefit to the Rule but this Court relying on the principle of Equal pay for Equal work as recognised and effectuated in Randhir Singh v. Union of lndia, 1982 3 SCR 298 held that the classification to be bad. Shri Ramamurthy invited our particular attention to the following observations of this companyrt made while striking down the basis of the classification. The explanation is that this division is based on seniority. This cannot be accepted as sufficient to meet the requirements of law. By seniority, a Senior Draughtsman will get higher pay with the increments that he earns proportionate to the number of years he is in service. Here that is number the case. It is the classification of the Senior Draughts-men into two groups, that is responsible for the higher pay In view of the total absence of any plea on the side of the respondents, that the Senior Draughts-men who are placed in the advantageous group. do number perform work and duties more onerous or different from the work performed by the appellants group, it will have to be held that this grouping violates Article 14 of the Constitution . For the purposes of the case on hand, it is sufficient PG NO 489 to numbere that the classification between two groups of Senior Draughtsmen is without any basis. They do the same work, they perform the same duties, and as such the ratio of the decision in Randhir Singhs case applies to this case with greater force Shri Ramamurthy submitted that this is a full answer to the First-Respondents companytention and stated that the proper authority to plead any tenable justification for the purported classification in item 3 of Schedule I of the Regulations was the State Bank of India, which has framed and promulgated the regulations and said that though the State Bank of India was impleaded as a party, it did number enter appearance and seek to justify the principle justifying the classification. Shri Shanti Bhushan, however, submitted that the petitioners approach to the matter on the strength of Savithas case some what misconceived as the former case was one of Revision of pay scales simpliciter while the present Regulations do number companytemplate a mere revision of pay-scales of the existing cadres of officers but an exercise involving Rationalisation, Standardisation and Re-structuring of the whole Administrative set-up of the management-cadres of the Subsidiary-Banks of the State Bank of India. Shri Shantibhushan submitted that where, as here, new categories of posts and new Scales of Pay, number companyresponding to the pre-existing categories of posts and scales are created, criteria will have to be evolved and applied for the subsumption and fitment of the existing officers into the new categories of posts and scales of pay. It might happen that all the Officers of any particular pre-existing category, it was urged, cannot. en-bloc, be grafted on a particular new category or scale of pay and a fair and reasonable criteria would, therefore, require to be formulated which, while protecting the inter-se seniority of the existing-officers would also make for their absorbtion and distribution in the new- cadres and scales of pay on some reasonable basis. Shri Shanti bhushan submitted that the Regulations 4, 6 and 7 read with Schedule I envisage such an exercise and that, indeed, similar exercises have been undertaken and implemented both in the State Bank of India and in all the other subsidiary banks. Shri Shantibhushan submitted that any acceptance of the companytentiones urged for by the petitioners would have the effect of introducing new and unforeseen companyplications and unsettlements in respect of a large number of similar cases. Referring to Savitas case, Shri Shantibhushan submitted that that was a case of a mere unreasonable withholding of the benefits of pay-revision to some of the members who PG NO 490 were part of a well-defined class. That apart, that was case where Senior Draughtsmen were divided into two pay-scales of Rs.330-560 and Rs.425-700 respectively and the important factor was that under the same pay-revision the lesser grade of Draughtsmen had the benefit of revised pay scale of Rs.330-560. The unreasonableness and injustice of the case were writ large and set it apart. On a careful companysideration of the matter, we are pursuaded to the view that the Regulations did number bring about a mere revision of pay and that the analogy of precedents dealing with revision of pay would number be wholly determinative and that 1he companytentions urged by Shri Shantibhushan are number without force. Regulation 6 required the categorisation of posts under the various new categories of posts. At the hearing, Shri Shantibhushan brought to our numberice that about 32 posts had been categorised against the Senior Management Grade IV by the statutorily envisaged companymittee companystituted for the purpose. It has been urged for the First-Respondent-Bank that the seniority and greater experience of the existing-Officers in Grade-A have been taken into account by the Regulations in the placement and fitment of the existing officers in the Senior Management Grade Scale IV. This, we think, is number an instance to which the principle of equal pay for equal work companyld straight away be applied. Indeed, the qualitative differences of regard to degrees of reliability and responsibility cannot be put aside as irrelevant. There cannot be any Thumb-Rule to decide the invalidity of the provisions which recognise and provide for differentiation on the basis of higher experience, reliability and responsibility. Indeed, the observations of this Court All Customs Central Excise Stenographers recognised and Others v. Union of India, 1988 2 JT 519 are apposite There may be qualitative difference as regards reliability and responsibility. Functions may be same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other companyditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criteria which has a rational nexus with the object of PG NO 491 differentiation, such differentiation will number amount to discrimination The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less--it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on numberbasis or arrived mala fide either in law or in fact. In Randhir Singhs case itself it was recognised thus The higher qualifications for the higher grade, which may be either academic qualifications. or experience based on length of service reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for equal work would be an abstract doctrine number attracting Art. 14 if sought to be applied to them. In a recent pronouncement, this Court dealt with a case, the facts of which, in companyparison with those of the present one, would render the latter as a fortiori position. In State of U.P. v. J.P. Chaurasia and Ors, Civil Appeal No. 56 of 1987 dated 27.9.1988 this Court numbericed the question thus The question is whether it is permissible to have two pay-scales in the same cadre for persons having same duties and having same responsibility ? Reversing the decision of the High Court which in the facts of the case answered in the negative this Court observed The second question formulated needs careful examination. The question is number particular to the present case. It is pertinent to all such cases. It is a matter affecting the civil services in general. The question is whether there companyld be two scales of pay in the same cadre PG NO 492 of persons performing the same or similar work or duties. All Bench Secretaries in the High Court of Allahabad are undisputedly having same duties. But they have been bifurcated into two grades with different pay scales . . . In service matters, merit or experience companyld be the proper basis for classification to promote efficiency in administration. He or she learns also by experience as much as by other means. It cannot be denied that the quality of work performed by persons of longer experience is superior than the work of new companyers We think that the principle of classification amongst the existing officers Grade A for purposes of fitment in the new dispensation brought about by the statutory regulations cannot be said to be unreasonable and arbitrary requiring to be struck down as violative of Article 14. Some arguments were advanced on the question if the number of pots categorised against Senior Management Grade- Scale IV was higher than those filled-up by the initial- fitment under Regulation 7 read with Schedule I, the excess number of posts would automatically go, by way of placement, to the existing officers in Grade A without the requirement of promotion. The categorisation of posts under Regulation 6 is an exercise which is number in any way fettered by Regulation 7. If more number of posts are categorised under Senior Management Grade Scale IV than the number of existing-officers placed into the higher scale pursuant to Regulation 7 read with Schedule I, the proper companystruction to be placed on the scheme of the Regulation is that these extra number of posts in the higher scale would have to be filled-up by promotion under Regulation 17 and number by a companytinuing process of placement and fitment. There is thus, numbermerit in the writ petition which is accordingly dismissed. But in the circumstances, we make numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1006 ot 1980. From the Judgment and Order dated 13.2.1980 of the Karnataka High Court in C.R.P. No. 1287 of 1977. B. Datar for the Appellant. S. Javali and Ravi P. Wadhwani for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. Does a mortgagee with possession stand on a par with an owner of a building to seek the eviction of a tenant under Section 21 l h of the Karnataka Rent Control Act, 1961 for short the Act hereinafter for his bona fide requirement of the tenanted premises for residential or business needs is the question for determination in this appeal by special leave by a tenant. The Trial Court, the Appellate Court and the High Court in revision have answered the question in the affirmative and the aggrieved tenant number represented by his Iegal representatives is before us in appeal. The tenanted shop to one Nanjappa and the appellant had taken the same on rent for running a cycle shop. On the foot of an usufructuary mortgage executed in their favour, the respondents, who are partners, sought the eviction of the appellant under Section 2l 1 h of the Act. Their case was that they were also running a cycle shop in a rented premises but since their landlord had obtained an order of eviction against th In they were bona fide in need of another building to run their business. In such circumstance they had advanced a sum of Rs.25,000 to the appellants landlord Nanjappa and obtained a usufructuary mortgage of the tenanted premises and thus having stepped into the shoes of the landlord, they were seeking the eviction of the appellant. The appellants defence was that the usufructuary mortgage was a sham and numberinal translation created by the landlord with an oblique motive because he had refused to pay higher rent for the premises and secondly the mortgagees were number bona fide in need of the petition premises for their business, The Trial Court rejected both the defences and ordered eviction and the said order has been affirmed PG NO 508 by the Appellate Court and the High Court. In this appeal there is numberchallenge to the findings that the respondents were bona fide in need of another shop to run their business and that they had obtained an usufructuary mortagage of the tenanted premises from the owner Nanjappa. However, the companytention of the appellants is that a usufructuary mortgagee cannot be equated with the mortgagor landlord for seeking the tenants eviction under Section 21 1 h on the ground of bona fide requirement of the leased premises for his own use. The argument of Mr. Datar, learned companynsel for the appellant was that the Act is a beneficial piece of legislation intended to protect the tenants from unreasonable evictions and as such the provisions of Section 21 have to be companystrued in such a manner that the right of the tenants are number taken away beyond the limits of the Section. It was urged by the learned companynsel that if Section 21 1 h is to be liberally companystrued so as to equate a usufructuary mortgagee with the owner of a building and enable him to seek eviction of a tenant under Section 21 1 h , then it would give a handle for scheming landlords, who cannot themselves obtain an order of eviction against their tenants under Section 21 1 h , to crate a numberinal deed of usufructuary mortgage and have their tenants evicted with the help of the mortgagee and then secure possession of the leased premises for themselves. In this eontext it was pointed out by Mr. Datar that the usufructuary mortgage in favour of the respondents was only for a period of 30 months and therefore the mortgage should be treated as a companyourable transaction. Before we examine the merit of these companytentions, we may refer to the relevant provisions of the Act. The term landlord is defined in Clause h of Section 3 of the Act as under Landlord--Landlord means any person who is for the time being, receiving or entitled to receive, rent in respect of any premises whether on his own account, or on account, or on behalf of, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant and includes any person number being a tenant who from time to time derives title under a landlord and further includes in respect of his sub-tenant who has sub-let any premises Section 21 1 h under which the eviction-petition was filed reads as under PG NO 509 21 I h --that the premises are reasonably and bona fide required by the landlord for occupation by himself or any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust, that the premises are required for occupation for the purpose of the trust. On a reading of Section 3 h it may be seen that it is an inclusive definition and takes within the fold of landlord number only the owner of the premises but any person who for the time being is receiving or is entitled to receive the rent, whether on his own account or on account of, or on behalf of or for the benefit of any other person or as a trustees, guardian or receiver for any other person etc. A usufructuary mortgagee, as per Section 58 d of the Transfer of Property Act is entitled to be in possession of the mortgage property or to receive the rents and profits, either in full or in part, accruing from the property and appropriate the rents and profits in lieu of interest or in payment of the mortgage money or partly in lieu of interest or partly in payment of the mortgage money. By reason of his entitlement to receive the rent of the mortgage property. a mortgagee with possession will undoubtedly companystitute a landlord within the meaning of Section 3 h of the Act. The appellants companynsel did number dispute this position. He would however say that even so, Section 21 I h should be read down so as to restrict the meaning of the word landlord in that clause to the owner of the premises alone and number to a usufructuary mortgagee. Before companysidering the matter, we may refer to some of the decisions where the same question has been companysidered. A learned single judge of the Madras High Court has held in Baluswamy Servai v. N. Raju Servai, 1966 2 MLJ 4 that a usufructuary mortgagee of a building in the occupation of a tenant would undoubtedly companystitute a landlord within the meaning of Section 2 6 of the Madras Buildings lease Rent Control Act, 1960, as he is entitled to receive the rent o the building on is Own account and therefore he would be entitled to evict a tenant under Section 10 3 a i of the Act on he ground of bona fide requirement of the premises for his personal occupation. This ratio was followed in T. Ezhumalai v. Padmavathi Ammal, 1971 2 MLJ The same view was taken by a learned single judge of the Karnataka High Court also in a case arising under the Karnataka Rent Control Act in Aswatharamiah v. Special Deputy Commissioner, 1977 1 Karnataka Law Journal 332. However, a Division Bench of the Karnataka High Court took a different view in S.Subramanayaswamy v. Deputy Commissioner, PG NO 510 Bangalore, AIR 1981 Karnataka 190 and held that though a mortgagee with possession may satisfy he definition of landlord under Section 3 h of the Karnataka Act, he would number be entitled to claim priority in the matter of allotment of the mortgage premises to himself under Section 5 as the benefit of the Section companyld be availed of only by the owner landlord. As the decision in S. Subramanayaswamy supra companyflicted with some of the earlier decisions of the High Court, a reference was made to a Full Bench in R. Vijendra H.R. A.C., ILR 1988 Kar. 1591 for settlement of law on the question formulated as under Whether an usufructuary mortgagee is a landlord for purposes of Part II of the Karnataka Rent Control Act, 1961. The Full Bench answered the reference in the affirmative and held that since delivery of possession is a necessary companycomitant of a usufructuary mortagage and since the companycomitant entitles the usufructuary mortgagee to claim possession of the property to the exclusion of all other, including the mortgagor, the mortgagee is for all intents and purposes the owner himself, as he steps into the shoes of owner, and by reason of it he acquires the status of a landlord under Section 3 h as well as the provisions in Part II for claiming possession of the mortgage premises for is personal occupation. On a companysideration of the matter we find ourselves in agreement with the view taken by the Full Bench. We may number give the reasons for our view. The definition of landlord in Section 3 h , as we have already seen in an inclusive definition and would take within its fold any person who for the time being is receiving or is entitled to receive the rent in respect of the leased premises. The person receiving or entitled to receive the rent may do so either on his own account or on account of or on behalf of or or the benefit of any other person or as a trustee, guardian or receiver for any other person. A mortgagee with possession undoubtedly falls under the first category as he is entitled to receive the rent on his own account and this factor makes the usufructuary mortgagee stand on a higher and different footing than other persons accorded the status of a landlord under Section 3 h because their entitlement to receive rent is on behalf of or for the benefit of others and number on their own account. Secondly it is of significance that the legislature being alive to the expansive nature of the definition of the term landlord in Section 3 h had realised the need to limit PG NO 511 the operation of the definition in so far as eviction petitions under Section 21 1 h are companycerned. Section 21 1 sets out various grounds on which the eviction of a tenant can be sought for. The grounds may pertain to the omissions or companymissions of the tenant or to the bona fide requirement of the premises by the landlord in various situations. The legislature has taken care to see that in so far as clause h is companycerned viz the premises being reasonably and bona fide required by the landlord for his own occupation or for the benefit of any person for whom the premises are held, the status of a landlord should be denied to a Rent Collector or an Estate Manager. The exclusion is to be found in the Explanation to Clause 4 of Section 21 in the following terms For the purpose of clause h of the proviso to sub- section 1, expression landlord shall number include a Collector or Estate Manager. It therefore follows that if the legislature had wanted that a mortgagee with possession should number be equated with the owner of the premises and should be denied the benefit of seeking a tenants eviction under Section 21 1 h , the Legislature would have undoubtedly categorised a mortgagee with possession also as one of the excluded class of landlord lords for the Purposes of Section 21 1 h of the Act. Obviously therefore the legislature has number wanted a mortgagee with possession to be excluded of his right to seek eviction of a tenant from the mortgaged premises under Section 21 1 of the Act. Thirdly, a mortgagee with possession is enjoined by Section 76 a of the Transfer of Property Act manage the property as a man of ordinary prudence would manage it if it were his own. As such the mortgagees acts, it prudently done, companyld bind the mortgagor even after the redemption of the mortgage. A mortgagee with possession, steps into the shoes of the mortgagor and becomes entitled to all the rights of the mortgagor and the only right left with the mortgagor is the right of redemption. A mortgage with possession is entitled to be in possession of the mortgage property as long as it is number redeemed. If the mortgagee with possession leases back the property to the mortgagor, he acquires the rights of a lessor and is entitled to enforce the terms of the lease against the mortgagor vide Mathur Lal v. Keshar Bai Anr., AIR 1971 SC 310 . On account of all these factors there can be numberdoubt that a mortgagee with possession stands very differently from other kinds of landlords envisaged under Section 3 h of the Act. He is therefore entitled, as much as the owner himself, to seek recovery of possession of the leased premises from a tenant for his own bona fide requirements of use. For all these reasons we hold PG NO 512 that the view taken by the single judges in the cases referred to above and the Full Bench in R. Vijendras case supra is the companyrect view to be taken. As regards the companytention of Mr. Datar that a scheming landlord can adopt the devious method of creating a sham deed of usufructuary mortgage in order to have a tenant evicted, when he himself cannot sustain such an action, the argument fails to numbere that an order of eviction under Section 21 1 h would number be passed by the Court for the mere asking because, the mortgagee with possession has first get to prove that the premises are reasonably and bona fide required by him for occupation by himself. Without the reasonable and bona fide requirement being proved to the satisfaction of the Court, numberorder for eviction will be passed. Nextly, even if the mortgagee with possession satisfies the above test, he has to pass the further test laid down by sub-section 4 of Section 21 which provides that a tenant shall number be evicted under Section 21 1 h if the Court is satisfied that the tenant would be put to greater hardship by an order of eviction being passed than the hardship that would be caused to the landlord by refusal to pass an order of eviction in his favour. These things apart, it is inconceivable every landlord who would number be able to evict his tenant by resort to Section 21 1 h would be able to readily find a willing accessory who will be prepared to play the role of a usufructuary mortgagee and institute eviction proceedings against the tenant in order to secure the possession of the leased premises and then hand over possession to the owner of the building. For all these reasons, the appeal deserves to fail and will accordingly stand dismissed. The appellant is, however, given six months time from today to vacate the leased premises subject to the appellant filing an undertaking in the usual terms within four weeks from today. There will be numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Petition for Special Leave to Appeal Crl No 1783/1988. PG NO 622 From the judgment and Order dated 14.4.1988 of the Andhra Pradesh in W.P. No. 4454 of 1988. Ramaswamy, Additional Solicitor General and T.V.S.N. Chari for the Petitioners. Subba Rao for the Respondent. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. This appeal by special leave is directed against the judgment dated April 14, 1988 of the High Court of Andhra Pradesh in writ petition No. 4454 of 1988 whereby the order of detention passed against the respondent under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 The Act was quashed. Briefly stated the facts are these The respondent was said to have smuggled paddy from Andhra Pradesh to Tamil Nadu. During the watch kept by the Inspector, Vigilance Cell, Civil Supplies Department, Nellore on the night of November 4, 1987 a lorry bearing No. MDN-8505 carrying 125 bags of paddy was spotted when it was trying to go to Tamil Nadu avoiding check post. The lorry was chased by the Inspector of Police and his staff. The driver suddenly stopped the lorry, but the persons in the vehicle took the heals jumping out there-from and disappeared in the bushes. The respondent was identified by the Inspector of Police and his staff in the head lights of the jeep in which they were chasing. The driver of the vehicle was apprehended after a hot chase, but number the respondent. From the interrogation of the driver, it was established that on November 4, 1987, the respondent along with two others were in the cabin of the lorry and they were responsible for transporting paddy to Tamil Nadu. The paddy and the lorry were seized by the Inspector. A criminal case was registered against the driver under the Essential Commodities Act and the Andhra Pradesh Rice Procurement Levy Order, 1984. When the investigation of that case was proceeding, Additional Superintendent of Police, Nellore sent proposals to the District Magistrate for detaining the respondent under the Act. The District Magistrate passed an order dated December 24, 1987 directing the detention of the respondent. On January 4, 1988, the State Government approved the detention. On January 11, 1988 the State Government acting under sec. 10 of the Act refered the matter to the Advisory Board. PG NO 623 On January 27, 1988, the detenu submitted a representation through the Superintendent, Central Prison where he was detained to the Chairman of the Advisory Board and to the Chief Secretary, Government of Andhra Pradesh and also to the detaining authority. The Government forwarded the representation to the Advisory Board. On January 29, 1988, the Advisory Board met and heard the detenu and the officers on behalf of the Government. There were high ranking police officials representing the Government. The Advisory Board after hearing those officers and the detenu made an order We have heard the detenu, who has been produced before us and companysidered his written representation. We have also heard Sri V. Appa Rao, I.G.P. Spl , Vigilance, Sri C.R. Naidu, Addl. S.P. Vigilance , Hyderabad, Sri N. Chandramouli, D.S.P. Vigilance , Nellore and Sri Nageswara Rao, Incharge Joint Collector, Nellore District. We have perused the grounds of detention and other companynected papers. OPINlON We are of the opinion that there is sufficient cause for the detention of Balajangam Subaramaiah Subaramaiah Subbarami Reddy S O Changaiah. Chairman Member Member The Government agreed with the opinion and companyfirmed the detention for a period of six months. The detenu challenged the validity of the order of detention before the High Court. The High Court allowed the writ petition and quashed the order of detention. The High Court found that there was unequal treatment by the Advisory Board in companysidering the representation of the detenu. The Advisory Board having decided to hear the top ranking police officers like the Inspector General of Police, Vigilance, Additional Superintendent of Police, Vigilance, Deputy Superintendent of Police, Vigilance and Joint Collector of Nellore District ought to have given an equal chance of representation to the detenu by permitting him to be represented by a lawyer or at least by an official friend of an equal rank. The High Court tersely observed PG NO 624 In such circumstances, the Advisory Board ought to have provided the prisoner an opportunity for representation though number by a lawyer at least by some one equally companypetent like those who appeared for the State. The Government cannot deny the fact that the might of the official representation before the Advisory Board out- weighed by several times the value of the detenus representation . The High Court also found that the detenu did write to the Government on January 27, 1988 asking for representation by a lawyer and that request ought to have been acceded to by the Advisory Board when the matter came up before it. The High Court then said We are of the opinion that the dormant right of the detenu for equal representation had become active upon the mode of companyducting the proceedings by the Advisory Board. The prisoner in this case companyld number have envisaged that the High State officials would appear against his case and for the detaining authority. For these reasons. we cannot agree with the companytention that the prisoner himself was to blame for number asking the Advisory Board for a lawyers representation or for equal level of representation before the Advisory Board. As we are of the opinion that Article 22 5 requires the Advisory Board to afford the prisoner an equal opportunity for representing his case companypared with the quality and quantity of official representation allowed for the detaining authority and as we are also of the opinion that the official representation in this case far outweighed in importance the detenus representation we hold that Art. 22 5 is violated in this case. These are the findings of the High Court. The question is whether the view taken by the High Court in the premises is justified. In view of the fact that top ranking officials representing the Government were personally heard by the Advisory Board whether the detenu was prejudiced? Whether there was any breach of equality in denying him representation by a lawyer or friend? The Act by sec. 10 provides for companystitution of an Advisory Board. Sub-sec. 2 thereof provides that every such Board shall companysist of three persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, and such persons shall be appointed by the appropriate PG NO 625 Government. Sub-sec. 3 provides that the Government shall appoint one of the members of the Advisory Board who is, or has been, a Judge of a High Court to be its Chairman, etc. Section I0 provides for reference to Advisory Board. In every case where a detention order has been made under the Act, the Government shall, within three weeks from the date of detention of a person, place before the Advisory Board companystituted by it, the grounds on which the order has been made the representation, if any, made by the person affected by the order. Section 1I provides procedure to be followed by Advisory Board. It reads The Advisory Board shall, after companysidering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person companycerned, and if, in any particular case, it companysiders it essential so to do or if the person companycerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person companycerned. The report of the Advisory Board shall specify in a separate thereof the opinion of the Advisory Board as to whether or number there is sufficient cause for the detention of the person companycerned. When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter companynected with the reference to the Advisory Board, and the proceedings of the Advisory Board, and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be companyfidential. Section 12 provides that where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may companyfirm the detention order and companytinue the detention of the person PG NO 626 companycerned for such period as it thinks fit. But in case where the Advisory Board has reported that there is in its opinion numbersufficient cause for the detention of the person companycerned, the Government shall revoke the detention order and cause the person to be released forthwith. The Act thus by sec. 11 4 expressly denies representation through a legal practitioner. The Board may hear any person if necessary. If the detenu desires to be heard, the Board may hear him also. But numberperson has a right to be represented by a lawyer much less the detenu. This provision is in companyformity with Art. 22 3 b of the Constitution, the scope of which has been explained by a Constitution Bench of this Court. In A. K. Roy v. Union of India, 1982 2 SCR 272, this Court speaking through Chandrachud, CJ., had this to say at 339 On a companybined reading of clauses 1 and 3 b of Article 22, it is clear that the right to companysult and to be defended by a legal practitioner of ones choice, which is companyferred by clause 1 , is denied by clause 3 b to a person who is detained under any law providing for preventive detention. Thus, according to the express intendment of the Constitution itself, numberperson who is detained under any law, which provides for preventive detention, can claim the right to companysult a legal practitioner of his choice or to be defended by him. In view of this, it seems to us difficult to hold, by the application of abstract, general principle or on a priori companysiderations that the detenu has the right of being represented by a legal practitioner in the proceedings before the Advisory Board. Since the Constitution, as originally enacted, itself companytemplates that such a right should number be made available to a detenu, it cannot be said less to be satisfied. It is therefore, necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable. Learned Chief Justice companytinued PG NO 627 But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions companytained in Article 22 3 b . However, much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair, unjust and unreasonable. If Article 22 were silent on the question of the right of legal representation, it would have been possible, indeed right and proper, to hold that the detenu cannot be denied the right of legal representation in the proceedings before the Advisory Boards. It is unfortunate that companyrts have been deprived of that choice by the express language of Article 22 3 b read with Article 22 1 . And also said We must, therefore, hold, regretfully though, that the detenu has numberright to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions companytained in Article 22 4 b of the Constitution clearly is that a legal practitioner should number be permitted to appear before the Advisory Board for any party. The Constitution does number companytemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. In any case, that is number what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be a breach of Article 14, if a similar facility is denied to the detenu. We must, therefore, make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that officers of the Government in the companycerned departments often appear before the Board and assist it with a view of justifying the detention orders. If that be so, we must clarify that the PG NO 628 Boards should number permit the authorities to do indirectly what they cannot do directly and numberone should be enabled to take shelter behind the excuse that such officers are number legal practitioners or legal advisers. Regard must be had to the substance and number the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assist or advises on facts or law must be deemed to be in the position of a legal adviser. We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are number violated in any manner in the proceedings before them. Learned Chief Justice also examined the right of a detenu to be represented by a friend if number by a lawyer and in that companytext observed Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should number be extended so as to prevent the detenu from being aided or assisted by a friend who. in truth and substance, is number a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend. A detenu, taken straight from his cell to the Board s room, may lack the ease and companyposure to present his point of view. He may be tongue-tied, nervous, companyfused or wanting in intelligence, and if justice to he done. he must at least have the help of a friend who can assist him to give companyerence to his stray and wandering ideas. Incarceration makes a man and his thoughts disnevelled. Just as a person who is dumb is entitled, as he must, to he represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is number denial o1 natural justice per se, and therefore, if a statute excludes that facility expressly, it would number be open to the tribunal to allow it. Fairness, as said by Lord Denning M.R., in Maynard Osmond, 1977 I Q.B. 240, 253 can he obtained without legal representation. But, it is number fair, and the statute does number exclude that right, that the detenu should number even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility. PG NO 629 There are two decisions of this Court earlier to A.K. Roy, supra . In Kavita w o Sunder Shankardas Devidasani etc. v. State of Maharashtra, 11982 I SCR 138, Chinnappa Reddy, J. speaking for a three Judge Bench, observed at 147 Where a detenu makes a request for legal assistance, his request would have to be companysidered on its own merit in each individual case. In the present case, the Government merely informed the detenu that he had numberstatutory right to be represented by a lawyer before the Advisory Board. Since it was for the Advisory Board and number for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, companyld have if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer. He preferred number to do so. In the special circumstances of the present case, we are number prepared to hold that the detenu was wrongfully denied the assistance of companynsel so as to lead to the companyclusion that procedural fairness, a part of the Fundamental Right guaranteed by Article 21 of the Constitution was denied to him . In that case, this Court found that there was numberdenial of procedural fairness which is a part of the Fundamental Rights guaranteed under Article 21 of the Constitution. It was also found that the detenu made numberrequest for representation by a legal practitioner before the Advisory Board. In Nand Lal v. State of Punjab, 1982 SCR 718, A.P. Sen, J. said at 723 It is the arbitrariness of the procedure adopted by the Advisory Board that vitiates the impugned order of detention. There is numberdenying the fact that while the Advisory Board disallowed the detenus request for legal assistance, it allowed the detaining authority, to be represented by companynsel. It appears that the Advisory Board blindly applied the provisions of sub-s 4 of s. 11 of the Act to the case of the detenu failing to appreciate that it companyld number allow legal assistance to the detaining authority PG NO 630 and deny the same to the detenu. The Advisory Board is expected to act in a manner which is just and fair to both the parties. More recently in Johney DCouto v. State of Tamil Nadu, AIR 1988 SC 109, Ranganath Misra, J. speaking for a Bench of this Court, said at 112 The rule in A.K Roys case supra made it clear that the detenu was entitled to the assistance of a friend. The word friend used there was obviously number intended to carry the meaning of the term in companymon parlance. One of the meanings of the word friend, according to the Collins English Dictionary is an ally in a fight or cause supporter. The term friend used in the judgments of this Court was more in this sense than meaning a person known well to another and regarded with liking, affection and loyality?. A person number being a friend in the numbermal sense companyld be picked up for rendering assistance within the frame of the law as settled by this Court. The Advisory Board has, of companyrse, to be careful in permitting assistance of a friend in order to ensure due observance of the policy of law that a detenu is number entitled to representation through a lawyer. As has been indicated by this Court, what cannot be permitted directly should number be allowed to be done in an indirect way. Sundararajan, in this view of the matter. was perhaps a friend prepared to assist the detenu before the Advisory Board and the refusal of such assistance to the appellant was number justified. The history of civilised man is the history of incessant companyflict between liberty and authority. The companycentration of power in one hand and liberty in the other cannot go side by side. Temptation to use the power to curtail or destroy the liberty will be always there. It is found in the history of every companyntry. The power to detain a person without trial is a serious inroad into the liberty of individuals. It is a drastic power capable of being misused or arbitrarily exercised. The Framers of our Constitution were number unaware of it. Some of them perhaps were the worst sufferers being the victims in the exercise of that arbitrary power. They had, therefore, specifically incorporated in the Constitution enough safeguards against the abuse of such power. The power to legislate in regard to preventive detention is located in Entry 9 of List I as well as in Entry 3 of List III in the VII Schedule of the PG NO 631 Constitution. The safeguards in regard to preventive detention are incoporated under Article 22 of the Constitution. Article 22 4 provides No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-- a an Advisory Board companysisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention Provided that numberhing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause b of clause 7 or xxx xxx xxx xx xx xx xx xx xx Article 22 5 provides When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. These are the two important companystitutional safeguards. The Advisory Board is a companystitutional imperative. It has an important function to perform. It has to form an opinion whether there is sufficient cause for the detention of the person companycerned. There is numberparticular procedure prescribed for the Advisory Board since there is numberlis to be adjudicated. Section 11 of the Act provides only the broad guidelines for observance. The Advisory Board however, may adopt any procedure depending upon varying circumstances. But any procedure that it adapts must satisfy the procedural fairness. We need number deal with this aspect in detail since the Advisory Board companysists of person who are, or have been or are qualified to be appointed as Judges of a High Court. They are men of wisdom and learning. Their report as envisaged under sec. 11 2 of the Act should provide specifically in a separate part whereof as to PG NO 632 whether or number there is sufficient cause for the detention of the person companycerned. That opinion as to sufficient cause is required to be reached with equal opportunity to the State as well as the person companycerned, numbermatter what the procedure. It is important for laws and authorities number only to be just but also appear to be just. Therefore, the action that gives the appearance of unequal treatment or unreasonableness--whether or number any substance in it--should be avoided by the Advisory Board. We companysider that it must be stated and stated clearly and unequivocally that it is the duty of the Advisory Board to see that the case of detenu is number adversely affected by the procedure it adopts. It must be ensured that the detenu is number handicapped by the unequal representation or refusal of access to a friend to represent his case. In the instant case, since the Advisory Board has heard the high ranking officers of the Police Department and others on behalf of the Government and detaining authority, it ought to have permitted the detenu to have the assistance of a friend who companyld have made an equally effective representation on his behalf. Since that has been denied to the detenu, the High Court, in our opinion, was justified in quashing the detention order. It was, however, sought to be made out for the State that the police officers were present before the Board only to produce the record and they did number do anything further. But the record shows otherwise. The officers were number there only to produce the records. They were in fact heard by the Advisory Board obviously on the merits of the matter and that makes all the difference in the instant case.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION APPeal NO 4454 of 1985. From the Judgment and Order dated 15.2.1984 of the Punjab and Haryana High Court in L.P.A. No. 224 of 1984. M. Tarkunde, Miss Meenakshi Arora, R.N. Karanjawala and Mrs. Manik Karan jawala for the Appellant. K Jain, A.D. Sanger, Ajay K. Jain, Pramod Dayal, B.R. Appeal, P.G. Gokhale, Janendra Lal and Miss Yashmin Tarapore for the Respondents. PG NO 705 The Judgment of the Court was delivered by RAY, J. The only question that arises for decision in this appeal is whether an employee promoted to a post reserved for Scheduled Castes and Scheduled Tribes is entitled to have his seniority determined from the date of his appointment to the post or his seniority inter se will be reckoned as it was in the class or grade from which he was promoted to a post in a higher rank. The appellant, who is a Scheduled Caste joined service as a Clerk in the Electricity Branch of the Punjab Public Works Department on February 20, 1954. The terms and companyditions of his service were governed by the Punjab P.W.D. Electricity Branch Provincial Service Class-111 Subordinate posts Rules, 1952. In February, in and Punjab State Electricity Board was companystituted under Section 3 of the Electricity Supply Act, 1948 and the employees of the Electricity Branch were transferred to the Board. The companyditions of service of the employees were governed by their existing terms and companyditions as well as existing service Rules. In 1967 the Haryana State Electricity Board was companystituted and the appellant was allocated to the Haryana State Electricity Board with existing terms and companyditions of service. The Board being a statutory companyporation was requested by letter dated December 13, 1972 by the Government to provide for reservation of 22 of vacancies--initial recruitment and promotion posts for being filled up by members of the Scheduled Castes and Scheduled Tribes as well as by members of backward classes. The Haryana State Electricity Board adopted the above circular by its Resolution dated March 1976 providing for reservation of posts both for initial requirement as well as for promotion. The appellant was promoted on September 1973 as Deputy Superintendent the respondent No.2, Rajinder Singh Marya was also promoted by the same order as Deputy Superintendent. In the said order of appointment the following numbere was appended The earlier promotion of the above officials as Deputy Superintendent will number companyfer upon them any right to claim seniority over those who may otherwise be senior to them due to any reason whatsoever. On April 27, 1972 a circular was issued by the Chief Secretary Government of Haryana to all its departments regarding reservation for members of Scheduled Castes and Scheduled Tribes in service and fixation of seniority Paragraphs 2 and 4 of the said circular which are relevant are quoted hereinbelow PG NO 706 It has to be pointed out that this was irregular and inter se seniority of all the candidates taken together i.e. whether appointed against reserved vacancies or against open ones must be fixed according to the companybined merit list and number otherwise. Vacancies assigned to Scheduled Castes Backward Classes under block system are so assigned for the purposes of reservation only and are number intended for fixing inter se seniority of the candidates companytrary to their order in the companybined merit list prepared by the Public Service Commission Subordinate Service Selection Board. The above instructions, regarding determination of inter se seniority will however? apply only in those cases where the departmental service rules do number provide for seniority being determined from the date of joining or from the date of companyfirmation or by a method otherwise than the merit determined by the Public Service Commission S.S.S. Board. In other words, in all cases where the service rules have number yet been framed, or where the service rules provide for seniority being determined according to the merit laid down by the Commission S.S.S. Board, the seniority of the officials shall be determined in the manner stated above. In other cases, where the service rules specifically provide for seniority being determined from the date of joining or from the date of companyfirmation by the recruiting authority the seniority shall be determined by such different methods. As the seniority of the appellant was number determined from the date of his appointment to the post of Deputy Superintendent he made a representation to the Board requesting for determination of his seniority from the date of his appointment to the promoted post and also for companysidering his case for promotion to the post of Superintendent. This representation of the appellant was rejected on the ground that The officials belonging to the scheduled castes tribes and backward classes who are promoted against the posts reserved for them under the block system and for reasons other than inefficiency of their seniors will number be assigned seniority from the date of their joining in the PG NO 707 promoted rank. They shall be assigned seniority in the promoted rank with reference to their inter se seniority of their previous posts. Thereafter, on January 20, 1977 the appellant was finally informed that his seniority will number be companyputed from the date of his promotion to the post of Deputy Superintendent. On January 12, 1977 the respondent Nos. 2 and 3 i.e. Rajinder Singh Marya and Jagdish Lal Lamba who were junior to the appellant as Deputy Superintendents, were promoted as Superintendents superseding the claim of the appellant. Aggrieved by this, the appellant instituted an application under Article 226 of the Constitution of India in the High Court of Punjab and Haryana praying for a writ of mandamus directing the respondent No. 1 to companysider his case for promotion to the post of Superintendent on the basis of his being seniormost Deputy Superintendent according to the companytinuous length of service on that post and to promote him to the post of Superintendent with effect from the date his juniors have been promoted and for other companysequential reliefs. An affidavit was filed on behalf of Respondent No. 1 verified by Shri R. Prakash, Secretary, Haryana State Electricity Board wherein in para 3 it has been submitted that the seniority of the petitioner has been determined in the post of Deputy Superintendent in accordance with the exception below Rule 9 of the 1952 Rules. In Para 5 it has been admitted that the appellant was promoted as Deputy Superintendent on 25th September, 1973 and since then he is companytinuing on the said post. It has further been submitted that the promotion of the appellant was in an officiating capacity and he still companytinues to officiate as Deputy Superintendent. The appellant was promoted to the post of Deputy Superintendent against a post which was reserved for the Scheduled Castes, though he was far junior in the cadre of Assistants. In para 7 it has been stated that The petitioner cannot claim seniority above those two officials in the rank of Deputy Superintendent. In view of the exception to Rule 9, if a member of service is promoted temporarily to a post earlier than his senior for PG NO 708 reasons other than the inefficiency of the senior person, they will take rank inter se according to their relative seniority in the class from which they were promoted and junior persons thus promoted shall number be companyfirmed from a date earlier than the date of companyfirmation of his senior except on the score of inefficiency of the latter. In the present case, the petitioner was promoted temporarily to the post of Deputy Superintendent earlier to the other two officials on the ground that the petitioner belonged to the scheduled castes. The other two officials were number superseded on the ground of inefficiency On February 4, 1984 the learned single Judge of the High Court dismissed the writ petition holding inter alia that the instructions governing the matter of promotion in favour of the Scheduled Caste candidates had numberhing to do with the determination of the seniority of these candidates. Moreover, in the letter promotion the petitioner it was specifically mentioned that the earlier promotion would number companyfer on him any right or claim to seniority over and above those who were otherwise senior to him in the cadre from which he had been promoted. It was further held that m the light of exception to Rule 9, the petitioner being promoted temporarily, his seniority cannot be companynted from the date of his appointment in the higher post and the respondent Nos. 2 and 3 would be treated senior to him in the rank of Deputy Superintendent as they were senior to the petitioner in the grade of Assistants. It was therefore, found that respondent Nos. 2 and 3 were entitled to be promoted as Superintendents earlier to the petitioner . Against this judgment and order Letters Patent Appeal being LPA No. 224 of 1984 was filed. The said appeal was however. dismissed summarily as being without any merit. The appellant, thereafter, filed the instant appeal assailing the said judgment. Before proceeding to companysider the question whether the appellants seniority was properly determined under Rule 9 of the Punjab P.W.D. Electricity Branch Provincial Service Class 111 Sub-ordinate posts Rules 1952 in short to be referred herein as the said Rules it is necessary to set out herein the relevant provision of Rule 9 Seniority of the members of the Service--The seniority of the members of the Service for the time being serving in each class of appointment shown in Appendix A shall be determined as follows PG NO 709 Prior to companyfirmation i.e. in the case of persons serving on probation or in an officiating capacity in the order of the dates of their appointment or if such date be the same in respect of two or more persons, in the order of their ages, the older being placed above the younger. After companyfirmation by their respective dates of companyfirmation, provided that where two or more members are companyfirmed w.e.f. the same date they will retain the order to companyfirmation. Exception If a member of the service is promoted temporarily to a post earlier than his senior, for reasons other than the inefficiency of the senior person they will take rank inter-se according to their relative seniority in the class from which they were promoted and the junior person thus promoted shall number be companyfirmed from a date earlier than the date of companyfirmation of his senior except on the score of inefficiency of the latter. Provided further that if a member is appointed to a higher class later than a person who was junior to him in the lower class for reasons which the appointing authority may certify in writing to be companynected with the Public interest the person so appointed shall be given the same seniority in the higher class vis-a-vis such junior as he held in the lower class. Thus, on a plain reading of the Rule it appears that the seniority of the members of the Service serving in an officiating capacity shall be prior to companyfirmation in the order of the dates of their appointment and after companyfirmation by their respective dates of companyfirmation. There is an exception to this Rule to the effect that if a member of the Service is promoted temporarily to a post earlier than his senior for reasons other than inefficiency of the senior person they will take rank inter-se according to their relative seniority in the class from which they were promoted and the junior person so promoted shall number be companyfirmed from a date earlier than the date of companyfirmation of the senior. The provision companytained in the exception to Rule 9 is applicable only in the case of temporary promotion of a member of the service to a post earlier than his senior for the purposes other than inefficiency of the senior persons. PG NO 710 In the instant case admittedly the appellant has been promoted to the post of Deputy Superintendent which was reserved under the block system for members of the Scheduled Castes. The appointment to the said reserved post on promotion is a regular one and this has been admitted in paragraph 5 of the companynter-affidavit referred to hereinbefore. The appointment letter does number articulate that the promotion of the appellant to the post of Deputy Superintendent was purely temporary. The promotion has been made on a regular basis to the post of Deputy Superintendent reserved on the basis of quota of vacancies for being filled up by promotion of members belonging to the Scheduled Castes. The appointment of the appellant to the said promotional post of Deputy Superintendent, in our companysidered opinion cannot be designated to be purely a temporary promotion. This being the position the exception to Rule 9 ii of the said rules cannot be applied to determine the seniority of the appellant in the post of Deputy Superintendent and his seniority cannot be based in accordance with the inter-se seniority of the respondent Nos. 2 and 3 in the cadre of Assistants from which the appellant and respondent Nos. 2 and 3 were promoted to the post of Deputy Superintendent. Rule 9 i of the said Rules is applicable in this case and the seniority of the appellant is to be reckoned from the date of his appointment In the post of Deputy Superintendent. The appellant is thus senior to respondent Nos. 2 and 3 in the rank of Deputy Superintendent as he was promoted to the said post earlier than the respondents Nos. 2 and 3 and as such his claim for promotion to the post of Superintendent on the dates when the respondent Nos. 2 and 3 were promoted to such post is legal and valid. It may be mentioned that during the pendency of the writ petition, the appellant had been promoted to the post of Superintendent on 29.5.1981 and as such he pleaded in para 6 of the special leave petition that his seniority in the cadre of Deputy Superintendent should number be affected on the basis of the judgments rendered by the High Court. On a companysideration of the facts and circumstances stated hereinbefore, the finding of the High Court that the appellant was promoted temporarily and so exception to Rule 9 ii applies for determination of seniority of the appellant as Deputy Superintendent, in our companysidered opinion, cannot be sustained as we have already held that the promotion of the appellant in a reserved vacancy, is a regular one and it does number smack of purely temporary character. The seniority of the appellant is to be reckoned from the date of his appointment to the said post according to the provisions of Rule 9 i of the said Rules. The judgments of the High Court in Letters Patent Appeal No. 224 of 1984 as well as in the writ petition No. 773 of 1977 are PG NO 711 set aside and the appeal is allowed. The respondent No. 1 is directed to treat the appellant promoted to the post of Superintendent from the date the respondent Nos. 2 and 3 were promoted to the said post and to pay him the emoluments attached to the said post of Superintendent minus the emoluments paid as Deputy Superintendent from that date till the date of his actual appointment as Superintendent, i.e. May 29, 1981. The appeal is thus allowed with companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No 3719-3721 of l988. PG NO 474 From the Judgment and Order dated 9/10.3.1987 of the Bombay High Court in W.P. Nos. 620, 622 and 621 of 1986. Ramaswamy, Additional Solicitor General and A.M. Khanwilkar for the Appellant. Dr. R.S. Kulkarni, Jitender Sharma, D.M. Nargolkar and S. Bhasme for the Respondents. The Judgment of the Court was delivered by DUTT, J. Special is granted. Heard learned Counsel for the parties. These appeals preferred by the appellant, the Maharashtra State Cooperative Cotton Growers Marketing Federation Ltd., are directed against the judgment of the Bombay High Court whereby the High Court allowed the writ petitions of the respondents and quashed the order of the Industrial Court Maharashtra Kolhapur Bench , Kolhapur, dismissing the companyplaints filed by the respondents. The Government of Maharashtra appointed the Maharashtra State Cooperative Marketing Federation, hereinafter referred to as the Marketing Federation, the Chief Agent in the Cotton Monopoly Scheme under the provision of section 42 of tile Maharashtra Raw Cotton Procurement Process of Marketing Act, 1971. The activities of the Marketing Federation extended to various agricultural produce including foodgrains. In February, 1984 the Government carved out the operation of the levy of companyton from the other activities of the Marketing Federation and assigned them to another society, namely. the Maharashtra State Cooperative Cotton Growers Marketing Federation Ltd., the appellant in all these appeals. By its order dated August 10, 1984, the Government directed the Marketing Federation to take the following actions In respect of the Staff working under the Cotton Monopoly Scheme at present, the Services of the seasonal staff working, if any, should be terminated with immediate effect and in any case number later than 15th August, 1984. So far as the regular staff is companycerned, it is proposed that the services of the staff working in the Cotton Department of the Federation at Bombay and in the Mofussil areas would be placed at the disposal of the new PG NO 475 Organisation on as is where is basis as on 1st July, 1984. In a subsequent letter dated September 8, 1984 the Marketing Federation was directed to effect the transfer of the chief agency from the Marketing Federation to the appellant, inter alia by transferring all the assets and liabilities under the scheme account and the cash and Bank balance at Bombay and Mofussil under the scheme account as well as under the number-scheme account to the appellant etc. The respondents claimed that they were permanent employees of the Marketing Federation and in view of the directions companytained in the said letter dated August 10, 1984 of the Government, the appellant should have appointed them on a permanent basis and number as seasonal employees. The case of the respondents was that they had been in the employment of the Marketing Federation since 1972 on monthly salaries with annual increments. Even though there was an Award in their favour by the Industrial Tribunal declaring them as permanent employees, yet the Marketing Federation and the appellant failed and neglected to give them the permanent status. Accordingly, they made companyplaints before the Industrial Court companyplaining of unfair labour practices on the part of the Marketing Federation as also on the part of the appellant as companytained in Items Nos. 6 and 9 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 items 6 and 9 are as follows Items 6. To employ employee as badlis, casuals or temporaries and to companytinue them as such for years, with the object of depriving them of the status and privileges of permanent employees. Item 9. Failure to implement award, settlement or agreement. In this companynection, we may refer to section 5 d of the said Act which provides that it shall be the duty of the Industrial Court to decide companyplaints relating to unfair labour practices except unfair labour practices falling in Item I of Schedule IV. The Industrial Court took the view that the companyplaints made by the respondents did number companye under Item Nos. 6 and 9, but they came under Item No. I and, as such, it companyld number decide the companyplaints in view of section 5 d . Further, it was held by the Industrial Court that there was numberunfair PG NO 476 labour practice on the part of the Marketing Fedration or the appellant and that, in any event, the companyplaints were barred by limitation as the same were filed beyond 90 days from the date of the knowledge of the respondents that they were appointed by the appellant as seasonal employees. Upon the said findings, the Industrial Court dismissed the companyplaints of the respondents. Being aggrieved by the order of the Industrial Court, the respondents filed writ petitions before the High Court and, as stated already, the High Court allowed the writ petitions and quashed the order of the Industrial Court. Hence these appeals. It has been already numbericed that under the Award of the Industrial Tribunal, the respondents were declared the permanent employees of the Marketing Federation. The appellant has prepared a seniority list for the year 1985-86 which shows that most of the respondents have been in the employment of the Marketing Federation since 1972. The said seniority list is Annexure D to the writ petitions filed by the respondents in the High Court. The annual increment list, also D prepared by the appellant, shows that the respondents have been in the service of the appellant on monthly salaries and they were given annual increments on November 1, 1985. In spite of the above facts, the respondents have been shown in the seniority list and also in the annual increment list as temporary employees. In our opinion, there cannot he any doubt that there has been unfair labour practice on the part of the Marketing Federation as also on the appellant by companytinuing them as temporary employees. We are unable to accept the companytention of the appellant that the Award is number binding on the appellant. In view of the Award, it must be held that the respondents were the permanent employees of the Marketing Federation, and that after the companystitution of the appellant and the transfer of the employees of the Marketing Federation to the appellant, the appellant was bound to accept the respondents as permanent employees and number to treat them as seasonal employees or temporary employees. This act on the part of the appellant amounts to unfair labour practice. We do number find any justification for the finding of the Industrial Court that the companyplaints made by the respondents do number companye within the purview of Items Nos. 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. No reason has been given by the Industrial Court why the companyplaints companye within Item No. 1 of Schedule IV and. as such, can be decided only by the Labour Court and number by the Industrial Tribunal. The companyplaints made by the respondents are clear and specific and there was numberscope for PG NO 477 categorising them as companyplaints under Item No. 1 of Schedule IV. With regard to the question of limitation, the Industrial Tribunal seems to think that as the appointment letters bear some dates in October, 1984, the period of limitation will be companyputed from the respective dates of the appointment letters. It has been assumed by the Industrial Tribunal that the respondents companye to know that they were being appointed as seasonal employees on the respective dates of their appointment letters. There is, however, numbermaterial on record to show on what dates the appointment letters were served on the respondents. In other words, there is numberhing to show when the respondents received the appointment letters. In the circumstances, the Industrial Court was number at all justified in holding that the companyplaints filed by the respondents were barred by limitation. Even assuming that the companyplaints were barred by limitation, as held by the Industrial Court, the Industrial Court should have given an opportunity to the respondents for explaining the delay. No such opportunity has been given to the respondents. Accordingly, we are unable to subscribe to the view of the Industrial Court that the companyplaints filed by the respondents were barred by limitation. Before parting with these appeals, we may dispose of a short companytention of the appellant. The learned Counsel for the appellant has placed much reliance upon a letter of the Government dated November 9, 1984 giving some directions to the appellant as companytained in paragraphs 1 and 2 of the said letter. Paragraphs 1 and 2 are as follows All staff recruited after 1st July 1972 specifically for the companyton scheme with prior approval of Government wherever necessary or where the Government representative was associated with the selection appointment of the candidates should be immediately placed on deputation without payment of Deputation Allowance to the Cotton Growers Marketing Federation Their salaries and allowances will be payable from the scheme as part of the companymission payable to the Cotton Growers Federation till 1st January, 1985. The Cotton Growers Federation Ltd. will finally absorb the above categories of staff after scrutiny as on 1st January,1985. Those out of the above staff who are number PG NO 478 acceptable to the new Federation for some reason or the other, and so have to be retrenched, will be retrenched by the Maharashtra State Cooperative Marketing Federation Ltd. and the companyt thereof would be debited to companyton scheme account On the basis of the directions in paragraph 2 extracted above, it is submitted on behalf of the appellant that the appellant is at liberty number to absorb or accept the respondents in the appellants companycern. This companytention, in our opinion, is without any substance whatsoever. There is a specific direction that the appellant shall finally absorb the staff of the Marketing Fedration after scrutiny as on January 1, 1985. The appellant cannot refuse to absorb or accept a permanent employee of the Marketing Federation without any reason whatsoever. So far as the respondents are companycerned, we do number find any reason why the appellant should number accept them as its permanent employees. The High Court has rightly directed the appellant and the Marketing Federation to process the cases of the respondents on the basis that they have put in more than 240 days of service and grant them all the benefits under the circular letter dated January 18, 1985. For the reasons aforesaid, the judgment of the High Court is affirmed and the appeals are dismissed with one set of companyts quantified at Rs.5,000.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDlCTION Civil Appeal No. 3773 of 1988. From the Judgment and Order dated 15.2.1988 of the Allahahad High Court in Writ Petition No. 3310 of 1983. K. Jain, R.B. Mehrotra and Pradeep Mishra for the Appellants. C. Mathur and K.P. Gupta for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Leave granted. The appeal is disposed of by the following judgment. This appeal arises out of the judgment and order of the High PG NO 428 Court of Allahabad, Lucknow Bench, dated 15th February, 1988. It relates to the premises being shop No. 483/10 in House No. 483/7, ward No. 11, Station Road, Rae Bareli, in P., hereinafter described as premises in dispute. The house was situated on the first floor of the aforesaid shop. The landlords of the aforesaid shop and house at present are S Sh. Anand Kumar Agnihotri and Raj Kumar Agnihotri, being the sons of late Sh. Krishna Chandra Agnihotri, residents of Station Road, Rae Bareli. After the death of the owner, Sh. Krishna Chandra Agnihotri, the entire property was divided amongst his sons and the present shop and house have fallen in the share of the aforesaid two sons. The appellant is the brother-in-law of the said landlords of the premises in dispute. It appears that on 26th April, 1980 the appellant moved an application before the Rent Control Eviction Officer, Rae Bareli. that the premises in dispute had fallen vacant and the same should be declared to be vacant and also applied for allotment of the said premises in his favour. The Rent Controller held that the shop was vacant. As mentioned hereinbefore, the proceedings started on an application which was moved by the appellant under Section 12 of the U.P. Urban Buildings Regulation of Letting, Rent Eviction Act, 1972 hereinafter called the Act, for allotment of the premises on the ground floor on the ground that the premises had fallen vacant. The Inspector Rent made a local inspection and found that the respondent was residing on the first floor whereas on the ground floor certain medicines were found and the water and electric companynections were in the name of the respondent. Evidence had been adduced before the Rent Controller. On behalf of the respondent it was companytended before the Rent Controller that the premises was number vacant and that the appellant, who had applied, was numbere other than the landlords wifes own brother. The High Court recorded that the building was taken on rent by M s. Dhacca Swastic Aushadhalaya, Station Road, Rae Bareli hereinafter called the Aushadhalaya , in the year 1946 or 1947. The Aushadhalaya was numberlonger in existence and the service of the proceedings was effected at its Varanasi address. It further appears from the records that the respondent had been doing the profession of Vaidya. On a companyspectus of the evidence the High Court was of the view that the Aushadhalaya had been a tenant through the respondent at the inception. The business, however, was closed in the year 1976 and the respondent was carrying on PG NO 429 his own business. The Rent Controller found that the tenant was number in occupation and the tenant, the Aushdhalaya, number its proprietor. The present respondent was number the tenant but the premises was occupied by Hirday Ranjan Chakraborty, the respondent herein. The Rent Controller found that the premises was number occupied by the tenant but by other person other than the tenant. The High Court found to the companytrary. The rent was being paid, but, as it appears, in the name of the tenant, and number in the name of the respondent in his own name. The rent was paid by the respondent in the name of the Dhacca Swastik Aushadhalaya, but the premises was being occupied by the person other than the tenant. Section 12 of the Act provides for deemed vacancy, which is as follows Deemed vacancy of building in certain cases.-- A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof it-- a he has substantially removed his effects therefrom, or b he has allowed it to be occupied by any person who is number a member of his family, or c in the case of a residential building, he as well as mem bers of his family have taken up residence, number being temporary residence, elsewhere. In the case of a number-residential building, where a tenant carrying on business in the building admitsa person who is number a member of his family as a partner or a new partner as the case may be, the tenant shall be deemed to have ceased to occupy the building. In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, Municipality, numberified area of town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy Provided that if the tenant or any member of his family had built any such residential building before the date of companymencement of this Act, then such tenant shall be deemed PG NO 430 to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. Explanation.--For the purposes of this sub-section-- a a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee b the expression any member of family in relation to a tenant, shall number include a person who has neither been numbermally residing with number is wholly dependent on such tenant. 3-A If the tenant of a residential building holding a trans ferable post under any Government or local authority or a public sector companyporation or under any other employer has been transferred to some other city, Municipality, numberified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him of any residential accommodation whether any accommodation be allotted under this Act or any official accommodation is provided by the employer in the city, Municipality. numberified area or town area to which he has been so transferred, whichever is later. 3-B If the tenant of a residential building is engaged in any profession, trade, calling or employment in any city, Municipality, numberified area or town area in which the said building is situate, and such engagement ceases for any reason whatsoever, and he is landlord of any other building in ally other city, municipality, numberified area or town area then such tenant shall be deemed to have ceased to occupy the first mentioned building with effect from the date on which he obtains vacant possession of the last mentioned building whether as a result of proceedings under section 21 or otherwise. Any building or Part which a landlord or tenant has PG NO 431 ceased to occupy within the meaning of sub-section 1 , or sub-section 2 , or sub-section 3 , sub-section 3A , or sub-section 3-B shall, for the purposes of this Chapter, be deemed to be vacant. A tenant or, as the case may be, a member of his family, referred to in sub-section 3 shall, have a right, as landlord or any residential buildings referred to in the said sub-section which may have been let out by him before the companymencement of the Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Amendment Act, 1976 to apply under clause a of sub-section 1 of section 21 for the eviction of his tenant from such building numberwithstanding that such building is one to which the remaining provisions of this Act do number apply. In fact, the said Section provides that where a landlord does number occupy the building or substantially removes his effects therefrom or allows to occupy any person who is number a member of his family, then the vacancy should be deemed. In this case, admittedly, the property is number being occupied by the members of the tenants family. It is number vacant but i is occupied by Hirday Ranjan Chakraborty, who was number the tenant at any relevant time. In our opinion, the deemed vacancy of the premises though number actually vacant, has happened. The Rent Controller was right in companying to that companyclusion. The error into which The High Court fell was in companysidering Hirday Ranjan Chakraborty to be a part Or the Aushdhalaya and the rent that was being paid and credited all along in the name of the Aushdhalaya to be treated as they rent on behalf of Hirday Ranjan Chakraborty. The tenant of the premises in question has long left. An employee without the companysent though, perhaps, with knowledge of the Landlord was occupying the premises, but in such circumstances it cannot be held as the High Court has done that there was numberdeemed vacancy. The High Court was in error in holding that the Aushdhalaya was a tenant through the petitioners. The tenant was the Aushdhalaya and the proprietors thereof. It is an admitted factual position and the High Court has recognised that the Aushdhalaya was closed in the year 1976. The High Court companymented that the landlord recognised Sh. Hirday Ranjan Chakraborty as a tenant and was charging rent from him. That is wrong and incorrect. There was numbersuch evidence. PG NO 432 No rent was charged from Hirday Ranjan Chakraborty. He never paid any rent. The rent paid in the name of the Aushdhalaya by Hirday Ranjan Chakraborty. The High Court has rightly companymented that the landlord knew that there was a change in the occupation but the landlord did number companysent as there was numberevidence and Hirday Ranjan Chakraborty has number said that there was any change of tenancy. The tenancy was number in the name of Hirday Ranjan Chakraborty. The premises, indubitably, was in the name of the Aushdhalaya. It was number in occupation or possession of the Aushdhalaya, its proprietors or partners, and at the relevant time Hirday Ranjan Chakraborty did number claim or purported to occupy the same on behalf of the Aushdhalaya. He claimed and asserted his own right of occupation. He was number the tenant. The premises, indubitably, was occupied by a person other than the tenant without his companysent but perhaps with the knowledge of the landlord. In those circumstances, in our opinion, the High Court was number right. The Rent Controller in his order had held that Hirday Ranjan Chakraborty companyld number be given the benefit of Regulations 6 14 of the Act because at numberstage the landlord had accepted him as the tenant. In view of this categorical finding, it companyld number be said that Hirday Ranjan Chakraborty was occupying the premises in question with the companysent of the landlord. In The premises the judgment and order of the High Court are set aside. The order of the Rent Controller is restored. M. P. No. 17425 of 1988 In view of the above order, numberorder is necessary in this application, and the same is accordingly dismissed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 3804 to 3807 of 1988. From the Judgment and Order dated 23.11.1987 of the Bombay High Court in Second Appeal No. 404 of 1985, W.P. No. 607 of 1985 ant Second Appeal No. 86 of 1986. K. Garg, Vijay Hansaria and Sunil K. Jain for the Appellants. PG NO 714 B. Bhasme, V.M. Tarkunde, A.S. Bhasme, V.N. Ganpule, S Agnihotri, A.G. Pawar and A.B . Lal for the Respondents. The Judgment of the Court was delivered by DUTT, J. Special leave is granted in all these matters. Heard learned Counsel for the parties. The principal question that is involved in these appeals is some-what peculiar. The question is whether the Food Civil Supplies Department, Sholapur, has a separate and independent existence or whether it is part and parcel of the Revenue Department. The best authority which can answer the question is the Government, but the Civil Courts and the High Court have number been able to accept the Government version that the Food Civil Supplies Department, Sholapur, is an independent Government Department and does number form part of the Revenue Department. The facts leading to the question will be stated presently. The Commissioner of Pune Division, by his order dated January 27, 1981, granted promotions to the appellants to the posts of Awal Karkuns, and directed that the private respondents herein, who were holding these posts would be repatriated to their parent department, that is, the Revenue Department. Aggrieved by the said order of the Commissioner, Pune Division, some of the private respondents filed a civil suit for a declaration that the said order granting out of turn promotions to the appellants as Awal Karkuns was unjust, illegal and violative of the fundamental rights of the respondents guaranteed under Articles 14 and 16 of the Construction of India. The learned Civil Judge, Senior Division, Sholapur, decreed the suit and declared that the impugned order of the Commissioner, Pune Division was discriminatory, illegal and number binding upon the respondents. The learned Civil Judge also granted an injunction permanently restraining the Government from reverting the respondents from the posts of Awal Karkuns to the posts of Clerks on appeal. the Fourth Addition District Judge, Sholapur, upheld the judgment and decree of the Civil Court and dismissed the appeal preferred by the appellants and the State of Maharashtra The appellants and the State of Maharashtra filed two separate second appeals to the High Court of Bombay. In the meantime, some of the respondents also filed writ petitions in the High Court challenging the validity of the impugned order of the Commissioner, Pune Division. The High Court, by a companymon judgment, disposed of the second appeals and the writ petitions. The High Court PG NO 715 came to the finding that the Food Civil Supplies Department, Sholapur, had numberseparate existence on the date the impugned order was passed, and that it was part and parcel of the Revenue Department. Upon that finding, the High Court dismissed the second appeals and allowed the writ petitions of the respondents. It is number disputed before us that before 1965, there was numbersuch Department as the Food Civil Supplies Department at Sholapur. Initially, the Agriculture, Food Cooperation Department of the Government was entrusted with the subject of food and the supply thereof. By a circular dated January 13, 1965 of the Government of Maharashtra, a new department called the Civil Supplies Department was created. By a subsequent Government circular dated May 13, 1965 it was renamed as Food Civil Supplies Department . It appears from the said Government circular dated January 13, 1965, creating the department, that the Agriculture, Food Cooperation Department was renamed as the Agriculture Cooperation Department. In other words, the subject of food was withdrawn from the said and a new Department, namely the Civil Supplies Department. subsequently renamed as Food Civil Supplies Department, was created. After the creation of the Food Civil Supplies Department the rationing was introduced in Sholapur City and Salgarwadi area under the companytrol of the Food Civil Supplies Department which will appear from the Government resolution dated February 19, 1966. As a result of introduction of statutory rationing several posts had to be created in the establishment of the Controller of Rationing, which was admittedly a part of the Food Civil Supplies Department. Certain posts were also transferred from the Revenue Department to the Food Civil Supplies Department along with the holders of such posts. The most significant fact in this regard is that the holders of the posts had to be appointed afresh as personnel of the Food Civil Supplies Department which will also appear from the Government resolution dated February 19 1966. It is number disputed that at the time that is to say, after the introduction of statutory rationing, the Food Civil Supplies Department was an independent Government Department at Sholapur. The statutory rationing was discontinued in Sholapur with effect from May, 1, 1968. The posts in the rationing establishment were directed to be merged in the office of the Foodgrain Distribution Officer, Sholapur, and the expenditure on that account was directed to be debited to PG NO 716 the budget head 26-Miscellaneous Department Civil Supplies Department iii Procurement, Distribution and Price Control Mofussil and met from the grants sanctioned thereunder. It is, however, number disputed that some of the rationing staff were retrenched, some were absorbed in the Revenue Department and the remaining staff were directed to be merged in the office of the Food grain Distribution Officer, Sholapur, with effect from May 1, 1969. So far as the appellants before us are companycerned, they were number retrenched, but according to the private respondents they were absorbed in the Revenue Department. This has been emphatically disputed by the appellants. Mr. Tarkunde, learned Counsel appearing on behalf of the private respondents, has drawn our attention to a letter dated October 25, 1969 written by the Foodgrain Distribution Officer, Sholapur, to the Collector, Revenue Branch, Sholapur. In that letter, the Food grain Distribution Officer, Sholapur, requested the Collector to absorb the remaining staff of the rationing department, who were then working in the Foodgrain Distribution Office. At this stage, it may be that there is numberdispute that both the Departments, namely, the Food Civil Supplies Department and the Revenue Department, were under the District Collectorate. A list was attached to the said letter dated October 25, 1969 of the Foodgrain Distribution Officer relating to absorption of rationing staff in the Revenue Department. The list companytains the names of the appellants and under companyumn No. 7 of the list, it has been recorded that the appellants and other remaining staff were willing to work in the Revenue Department. In view of the said letter of the Foodgrain Distribution Officer and the list annexed to his letter written to the Collector, it is submitted by the learned Counsel, appearing on behalf of the private respondents, that the appellants were transferred to the Revenue Department as the Food Civil Supplies Department was abolished on the abolition of the statutory rationing. It has been already numbericed that some of the staff of the rationing establishment, who were number retrenched, were transferred to the office of the Foodgrain Distribution Officer. According to the respondents, the Foodgrain Distribution Office is under the Revenue Department, while the appellants aver that it belongs to the Food Civil Supplies Department. In this regard, the most important say is that of the Government. It is asserted on behalf of the State of Maharashtra that the Food grain Distribution Officer belongs to the Food Civil Supplies Department. The PG NO 717 companytroversy in this respect can be easily resolved by referring to the said letter dated October 25, 1969 of the Foodgrain Distribution Officer to the Collector, Revenue Branch. If the Foodgrain Distribution Office belongs to the Revenue Department, there was numbernecessity for the Foodgrain Distribution Officer to request the Collector, Revenue Department, to absorb the unretrenched staff of the rationing establishment. Be that as it may, the question that arises is whether the appellants were absorbed in the Revenue Department. It is true that under companyumn No. 7 of the list annexed to the said letter dated October 25, 1969 of the Food grain Distribution Officer, it has been recorded that the appellants and other staff of the rationing establishment were willing to work in the Revenue Department. There is, however, numberhing to show that as a matter of fact the appellants were transferred to the Revenue Department. The appellants might be willing to be absorbed in the Revenue Department, but there is numbermaterial in proof of the alleged absorption of the appellants in the Revenue Department. It is also number the case of the State Government that the appellants were absorbed in the Revenue Department. In the companynter affidavit of the respondent No. 1, it is stated as follows That the District Collector of Solapur by his memorandum dated 17-4-1969 laid down the companyditions of giving alternative employment to the retrenched ex-civil supply staff in Revenue Department. These companyditions are That the services in Revenue Department are transferable throughout the district. That Revenue employees are required to pass departmental examination within prescribed period. That to hold Awal Karkuns post Revenue employee is required to pass revenue qualifying exam. in addition to Sub-Service Department Examination. It is clear from the statement extracted above that one of the companyditions for absorption was that the appellants were required to pass the departmental examination within the prescribed period. Another companyditions was that one had to pass revenue qualifying examination in addition to Sub- Service Department Examination for holding the post of Awal Karkun in the Revenue Department. It is number disputed that the appellants have number passed any of these examinations. This shows that as they did number fulfil the companyditions for PG NO 718 absorption in the Revenue Department, they companyld number be transferred to or absorbed in that Department. The High Court proceeded on the assumption that on the abolition of the statutory rationing, the Food Civil Supplies Department, Sholapur, also came to be absolished. Indeed, this is also the companytention of the private respondents. Food is an important matter for Governments companysideration and it was the responsibility of the Agriculture, Food Cooperation Department before the creation of the Food Civil Supplies Department. The said Department was renamed as Agriculture Cooperation Department inasmuch as food was taken out of that Department and placed under the Food Civil Supplies Department. Thus, the fact of introduction or abolition of statutory rationing has numberhing to do with the question of food and supply thereof, which must be dealt with by some department of the government and after the creation of the Food Civil Supplies Department, it was dealt with by that Department. It will be wrong to assume that the Food Civil Supplies Department dealing with food and supply thereof, will be abolished companysequent on the abolition of the statutory rationing. In the companynter affidavit of the State of Maharashtra, affirmed by Shri Chandrasen Pandarinath Kamble, it has been stated inter alia that in the State of Maharashtra there is a system of Fair Price Shops and Household Card System in the areas where statutory rationing system does number exist This Fair Price Shops and Household Card system undoubtedly companyes under the companytrol and supervision of the Food Civil Supplies Department. As the Department existed it can be reasonably presumed that it had its own staff and the appellants companytention that they were retained in the Food Civil Supplies Department seems to be companyrect. Merely the fact of giving of companysent by the appellants to their absorption in the Revenue Department, fails to persuade us to hold that the appellants were absorbed in the Revenue Department, in the absence of any proper material in that regard. A question has, however, been raised on behalf of the private respondents that if the Department of Revenue and the Food Civil Supplies Department are two different Departments of the Government, there is numbermaterial to show how the respondents came to hold posts in the Food Civil Supplies Department. It is true that there is numberorder showing that the respondents were transferred on deputation from the Revenue Department to the Food Civil Supplies Department. In our opinion, in view of the facts and circumstances stated above, it can be reasonably presumed PG NO 719 that the respondents were sent on deputation to the Food Civil Supplies Department, otherwise there was numberquestion of their repatriation to their parent department, that is, the Revenue Department. There are other materials which would also justify the finding that the Food Civil Supplies Department and the Department of Revenue are two independent and separate Departments even after the abolition of statutory rationing. The Governor of Maharashtra, by an order dated April 13, 1983, framed rules under the proviso to Article 309 of the Constitution of India for regulating recruitment to the posts of Assistant Commissioner Supply , District Supply Officer and Foodgrain Distribution Officer Class-I under the Food Civil Supplies Department of the Government of Maharashtra. Framing of these rules, proves two things, namely, that the Food Civil Supplies Department has independent and separate existence, and that the Foodgrain Distribution Officer belongs to that Department. Another set of rules was framed under the proviso to Article 309 of the Constitution of India by the numberification dated May 21, 1984 for regulating recruitment to Class-11 posts in the Food Civil Supplies Department of the Government of Maharashtra. The framing of these rules for regulating the recruitment of officers in the Food Civil Supplies Department supports the case of the appellants and also of the Government that the Food Civil Supplies Department Sholapur, is an independent Department. The final gradation list of supply staff of directly recruited Clerks and Godown Keepers was prepared and published. It is. however companytended on behalf of the private respondents that the supply staff belong to the Revenue Department. This companytention is without any substance. The words supply staff undoubtedly, refer to the supply staff of the Food Civil Supplies Department . The State Government is justified in placing reliance upon the gradation list in support of its case that the Food Civil Supplies Department is an independent and separate Department. It is, therefore, apparent from the above facts, particularly the fact that separate rules were framed for recruitment of officers in the Food Civil Supplies Department and a final gradation list was also prepared and published, and the Food Civil Supplies Department number part and parcel of the Revenue Department but it has a separate and independent existence. This finding finds support from another fact that the Revenue Department has its own gradation list of its employees including the private respondents. PG NO 720 We may number deal with one more submission made on behalf of the private respondents. Our attention has been drawn to a fact which has also been numbericed by the High Court, namely, that by a Government order issued to all Commissioners of Divisions, it was directed that the posts of Inspecting Officers should be made available to the persons from the Revenue Department as well as from the Food Civil Supplies Department in the ratio of 7525. It is submitted on behalf of the private respondents that this Government order points to the fact that both the Food Civil Supplies Department and the Revenue Department are one and the same Department at Sholapur. We are unable to accept this companytention. The Government order in question, in our opinion, establishes the fact that the two Departments are separate Departments of the Government. It has been already numbericed that some officers of the Revenue Department were holding the posts in the Food Civil Supplies Department, Sholapur, presumably on deputation and, hence, the ratio with regard to the posts of Inspecting Officers, with which we are number companycerned, had to be fixed. If the two Departments were number separate Departments, there was numbernecessity for mentioning the names of these two Departments in the said order. It is number disputed that the posts of Inspecting Officers are posts of the Food Civil Supplies Department. The companytention of the private respondents based on the said Government order is, accordingly, rejected. Before we companyclude the judgment, we may refer to an unreported Bench decision of the Nagpur Bench of the Bombay High Court in Special Civil Applications Nos. 707 of 1974 and 4258 and 4834 of 1976 Shri Atmaram Chaturji Garbade Ors. v. State of Maharashtra Ors. disposed of on January 13, 1977 where it has been held that the two departments are separate. It is, however, companytended by Mr Tarkunde that the Nagpur Bench decision has numberbearing on the instant appeals before us as it relates to the city of Nagpur and cantonment in Kampte where the Food Civil Supplies Department was number abolised. It, however, appears that in that decision, the Bench has taken into companysideration some companymon documents. Be that as it may, in the instant appeals, there are ample materials which justify the companyclusion that the two departments are number one and the same department but are two separate departments. In the circumstances, we are unable to agree with the High Court that the appellants are employees of the Revenue Department inasmuch as after the abolition of the statutory rationing, the Food Civil Supplies Department was also abolished and the appellants were absorbed in the Revenue PG NO 721 Department. As the appellants belong to a different department, their promotions will be governed by the rules of that department. Similarly, the promotions of the private respondents will be companysidered in accordance with the rules of the Revenue Department. We are told that after their repatriation to their parent department all the private respondents were promoted to the posts of Awal Karkuns. For the reasons aforesaid, we set aside the judgment of the High Court as also of the trial companyrt and that of the lower appellate companyrt and dismiss the suit and the appeals. The writ petitions filed in the High Court are also dismissed. The instant appeals are allowed, but in view of the peculiar facts and circumstances of the cases, there will be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3212 of 1979 etc. From the Judgment and Order dated 20.8.1979 of the Delhi High Court in Civil Writ Petition No. 426 of 1978. PG NO 927 Rajinder Sachar, G.B. Pai, Narayan Shetty, K.T. Anantharaman, Mrs. P.S. Shroff, S. Shroff, Ms. Girija Krishan, C.C. Mathur, A.M. Mittal, D.N. Mishra, Dalbir Bhandari, Ms. C.K. Sucharita and Ms. A. Subhashini for the appearing parties. The Judgment of the Court was delivered by DUTT, J. Of these three appeals by special leave. we may first of all deal with Civil Appeal No. 3214 of 1979 for. admittedly, the disposal of that appeal will virtually mean the disposal of the other two appeals. The said Civil Appeal No. 3214 of 1979 is directed against the judgment of the Delhi High Court whereby the High Court has quashed a circular dated March 8, 1978 issued by the Board of Directors of Caltex Oil Refinery India Ltd. for short CORIL ,a Government Company, on the writ petition filed by the employees of CORIL being Writ Petition No. 426 of 1978. The Caltex Acquisition of Shares of Caltex Refining India Ltd. and of the undertakings in India of Caltex India Ltd. Act 17 of 1977, hereinafter referred to as the Act, was enacted by the Union Parliament and came into force with effect from April Z3. 1977. the Act provides for the acquisition of shares of CORIL and for the acquisition and transfer of the right, title and interest of Caltex India Ltd. in relation to its Undertakings in India with a view to ensuring companyordinated distribution and utilisation of petroleum products. Under section 3 of the Act, the share in the capital of the CORILS stood transferred to and vested in the Central Government On the appointed day being December 30, 1976. Under section 5, the right. title and interest of Caltex India Ltd. in relation to its Undertakings in India stood transferred to and vested in the Central Government on the appointed day. Section 9 of the Act provides that the Central Government may by a numberification direct that the right, title and interest and the liabilities of Caltex Inida Ltd. in relation to any of its Undertakings in India shall, instead of companytinuing to vest in the Central Government, vest in the Government Company either on the date of the numberification or on such earlier or later date number being a date earlier than the appointed day, as may be specified in the numberification. Section 11 2 provides that subject to rules made in this behalf under section 23, every whole-time officer or other employee of CORIL would on the appointed day companytinue to be an officer or other PG NO 928 employee of CORIL on the same terms and companyditions and with the same rights to pension, gratuity and other matters as are admissible to him immediately before that day and shall companytinue to hold such office unless and until his employment under CORIL is duly terminated or until his remuneration and companyditions of service are duly altered by that companypany. The Chairman of the Board of Directors of CORIL issued the impugned circular dated March 8, 1978, inter alia, stating therein that companysequent upon the take over of the Caltex India Ltd. by the Government, the question of rationalisation of the perquisites and allowances admissible to Management Staff had been under companysideration of the Board for sometime, and that as an interim measure, the Board had decided that the perquisites admissible to the Management Staff should be rationalised in the manner stated in the said circular. At this stage, it may be mentioned that by the Caltex Oil Refinery India Ltd. and Hindustan Petroleum Corporation Ltd. Amalgamation Order, 1978 which was published in the Gazette of India, Extraordinary, dated May 9, 1978, the Undertaking of CORIL was transferred to and vested in Hindustan Petroleum Corporation Ltd. which thus became a Government Company referred to in section 9 of the Act. After the issue of the said circular, the respondents Nos. 1 to 4, who were some of the employees of CORIL, filed a writ petition in the Delhi High Court being Civil Writ Petition No. 426 of 1978 challenging the legality and validity of the impugned order. It was submitted by the said respondents that under the said circular the terms and companyditions of service of the employees of CORIL had been substantially and adversely altered to their prejudice. At the hearing of the said writ petition before the High Court it was companytended on behalf of the respondents Nos. I to 4 that the numberification issued under section 9 of the Act vesting the management of the Undertakings of Caltex India Ltd. in CORIL was ultra vires subsection 1 of section 9. It was companytended that the provision of subsection 1 of section 11 of the Act offended against the provisions of Articles 14, 19 and 31 of the Constitution of India and, as such, it should be struck down. Further, it was companytended that there was numbervalid classification between the companytracts referred to in section 11 1 and Section 15 of the Act. It was urged that unguided and arbitrary powers had been vested in the of official by sub-section 1 of section 11 for the PG NO 929 alteration of the terms and companyditions of service of the employees. Besides the above companytentions, another companytention was advanced on behalf of the respondents Nos. 1 and 4, namely, that the employees number having been given an opportunity of being heard before altering to their prejudice the terms and companyditions of service, the impugned circular should be struck down as void being opposed to the principles of natural justice. All the companytentions except the last companytention of the respondents Nos. 1 to 4 were rejected by the High Court. The High Court, however, took the view that as numberopportunity was given to the employees of CORIL before the impugned circular was issued, the Board of Directors of CORIL acted illegally and in violation of the principles of natural justice. In that view of the matter, the High Court quashed the impugned circular. Hence this appeal by special leave. It is number disputed that the employees were number given any opportunity of being heard before the impugned circular dated March 8, 1978 was issued. It is, however, submitted by Mr. Pai, learned Counsel appearing on behalf of CORIL, that there has been numberprejudicial alteration of the terms and companyditions of service of the employees of CORIL by the impugned circular. It is urged that numberhing has been pleaded by the respondents Nos. 1 to 4 as to which clauses of the impugned circular are to their detriment. The High Court has also number pointed out such clauses before quashing the impugned circular. It appears that for the first time before us such a companytention is advanced on behalf of CORIL. In this companynection we may refer to an observation of the High Court Which is Admittedly, the impugned order adversely affects the perquisites of the petitioners. It has resulted in civil companysequence. The above observation clearly indicates that it was admitted by the parties that the impugned circular had adversely affected the terms and companyditions of service of the respondents Nos. 1 to 4 who were the petitioners in the writ petition before the High Court. Mr. Sachhar learned Counsel appearing on behalf on the respondents spondents Nos. 1 to 4. has handed over to us a companyy of the writ petition filed by the respondents Nos. 1 to 4 before the High Court being Civil Writ Petition No. 426 of 1978. In paragraph 12 of the writ petition it has been inter alia stated as tollows The petitioners respectfully submit that under the said circular the terms and companyditions of service of the employees of the second respondent including the petitioners herein have been substantially and adversely altered to the PG NO 930 prejudice of such employees. The same would be clear inter alia from the statements annexed hereto and marked as Annexure IV. Annexure IV is a statement of Annual Loss in Remuneration Income per person employee posted at Delhi and P. Nothing has been produced before us on behalf of CORIL or the Union of India to show that the statements companytained in Annexure IV are untrue. In the circumstances, there is numbersubstance in the companytention made by Mr. Pai that there has been numberprejudicial alteration of the terms and companyditions of service of the employees of CORIL, and that numberhing has been pleaded by the respondents Nos. 1 to 4 as to which clauses of the impugned circular are to their detriment. On of the companytentions that was urged by the respondents Nos.1 to 4 before the High Court at the hearing of the writ petition, as numbericed above, is that unguided and arbitrary powers have been vested in the official by sub-section 1 of section 11 for the alteration of the terms and companyditions of service of the employees. It has been observed by the High Court that although the terms and companyditions of service companyld be altered by CORIL, but such alteration has to be made duly as provided in sub-section 2 of section 11 of the Act. The High Court has placed reliance upon the ordinary dictionary meaning of the word duly which. according to Concise Oxford Dictionary, means rightly, properly, fitly and according to Strouds Judicial Dictionary Fourth Edition, the word duly means done in due companyrse and according to law. In our opinion, the word duly is very significant and excludes any arbitrary exercise of power under section 11 2 . It is number well established principle of law that there can be numberdeprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without companyplying with the rules of natural justice by giving the Government servant companycerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing companyditions of service of a Government servant will offend against the provision of Article of the Constitution Admittedly, the employees of CORIL were number given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular was therefore, be sustained as it Offends against the rules of natural justice. It is, however, companytended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the companyditions of their service by the impugned PG NO 931 circular. In our opinion, the post-decisional opportunity of hearing does number subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper companysideration of the representation at such a post-decisional opportunity. In this companynection, we may refer to a recent decision of this Court in K.I. Shephard Ors. v. Union of India Ors., JT 1987 3 600. What happened in that case was that the Hindustan Commercial Bank, The Bank of Cochin Ltd. and Lakshmi Commercial Bank, which were private Banks, were amalgamated with Punjab National Bank, Canara Bank and State Bank of India respectively in terms of separate schemes drawn under section 45 of the Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first mentioned three Banks were excluded from employment and their services were number taken over by the respective transferee Banks. Such exclusion was made without giving the employees, whose services were terminated, an opportunity of being heard. Ranganath Misra, J. speaking for the Court observed as follows We may number point out that the learned Single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is numberjustification to think of a post-decisional hearing. On the other hand, the numbermal rule should apply. It was also companytended on behalf of the respondents that the excluded employees companyld number represent and their case companyld be examined. We do number think that would meet the ends of justice. They have already been thrown our of employment and having been deprived of livelihood they must be facing serious difficulties. I here is numberjustification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a companydition precedent to action. It is companymon experience that once a decision has been taken. there is a tendency to uphold it and a representation may number really yield any fruitful purpose. The view that has been taken by this Court in the above observation is that once a decision has been taken, there is a tendency to uphold it and a representation may number yield any fruitful purpose. PG NO 932 Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that would number be any companypliance with the rules of natural justice or avoid the mischief of arbitrariness as companytemplated by Article 14 of the Constitution. The High Court. In our opinion was perfectly justified in quashing the impugned circular . In the result, Civil appeal No. 3214 of 1979 is dismissed. In view of the reasons given in Civil Appeal No. 3214 of 1979, Civil Appeal No. 3518 of 1979 is also dismissed. Civil Appeal No. 3212 of 1979 has been preferred by the writ petitioners in civil Writ Petition No. 426 of 1978 filed before the High Court. The writ petitioners succeded in getting the impugned circular quashed by the High Court. As the High Court rejected some of the grounds of challenge to the impugned circular, the appeal has been preferred. There is numbermerit in this appeal and it is wholly misconceived. The appeal is, therefore, dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal NO. 293 of 1988. From the Judgment and Order dated 24.4.1987 of the Andhra Pradesh High Court in W.P. NO.1645 Of 1987. C. Bhandare, M. Qamaruddin and Mrs. M. Qamaruddin for the Appellant. A. Choudhary, A.V. Rangam and T.V.S.N. Chari for the Respondents. The Judgment Of the Court was delivered by. JAGANNATHA SHETTY, J. This appeal by leave is directed against the judgment and order dated April 24, 1987 Of the Division Bench Of the High Court of Andhra Pradesh dismissing the writ petition NO.1645 Of 1987. PG NO 896 Briefly stated, the facts are these In the month of August 1984 a Ministry headed by Sri N. Bhaskara Rao suddenly came into power in A.P. The said Ministry just lasted for about a month and had to go out of office for want of vote of companyfidence by the State Legislative Assembly. During that short term, the Government granted a number of permissions to various private bodies and individuals for starting companyleges of education B.Ed. companyrses. The appellant was one among those beneficiaries. The permission was granted with several companyditions. Those companyditions were required to be companyplied with within a period of six months. In the middle of September 1984 Bhaskara Raos Ministry went out of office and the Government headed by Sri N.T. Rama Rao came back to power. Soon thereafter the permissions granted were suspended or cancelled. The appellant and other institutions aggrieved by the cancellation moved the High Court of Andhra Pradesh for relief under Article 226. he appellant filed writ petition No. 812 of 1986. The State companytended that the parties did nOt companyply with the companyditions of the grant of permission. All those writ petitions were disposed of by companymon order dated March 7, 1986. The High Court was of opinion that the cancellation was as arbitrary as the grant of permission. So a via media was taken since the parties have invested large sums of money for establishing the companyleges. The High Court laid down certain companyditions and issued directions for companypliance for granting permission and recognition to the companyleges. Some of those directions are as follows The petitioners shall companyply with the requirement of the deposit of Rs.4,50,000 within one month from this date. If the Director of School Education does number companyperate with the petitioners in opening a joint account the deposit shall be made in a fixed deposit account in the name of the companylege in any nationalised or scheduled bank. It shall be open to the petitioner to pursue his application for exemption meanwhile but the time limit prescribed herein remains or applies to this petition as well . The petitioners shall companyply with the requirements relating to the appointment of qualified staff and the laboratory, Library and audio-visual equipment within three months from today. For the purpose of recruitment of the teaching staff, the petitioners shall issue Notifications in two dailies with wide circulation in this State Calling PG NO 897 for applications from the qualified teachers on receipt of applications selections shall be made by the Selection Committee if one is already companystituted by the Government or the University and if numberSelection Committee is companystituted, it shall be companystituted companysisting of a member of the Management, the Director of School Education or his numberinee, number below the rank of a Joint Director and in his absence by E.O and an Expert to be numberinated by the University. The petitioners shall send companymunications to the Director of School Education and the University as soon as applications are received for the purpose of companystituting the Selection Committee and the said officers shall take the necessary steps in this behalf. If the qualified staff do number respond to the Notification issued by the petitioners and companysequently the petitioners find difficulty in appointing qualified staff the petitioners shall made a representation to the Director of School Education seeking his help in the recruitment and appointment of qualified teaching staff. All other requirements, including the Model School, subject to which permissions were initially granted to the petitioners shall be companyplied with by the petitioners number later than 3st July, 1986. The petitioners shall send a companypliance report to the Director of School Education as soon as the requirement regarding deposit of Rs.4,50,00 within the permitted time is companyplied with duly endorsing a companyy of the companypliance report to the Government. Similarly, the petitioners shall send a companypliance report to the Director of School Education regarding the appointment within the permitted time of the required qualified teaching staff and also the provision of library laboratory and audio-visual equipment endorsing a companyy of the companypliance shall send a report to the Director of School Education endorsing a companyy thereof to the Government regarding the companypliance of all other requirements as directed above by 3 Ist July, 1986. The Director of School Education was asked to make such enquiry as he thinks fit to satisfy himself about companypliance of the above requirements. If there was numbersatisfactory companypliance within the prescribed period, the High Court said PG NO 898 that the companycerned institution shall cease to function at the end of the academic year 1985-86. In accordance with directions issued by the High Court, the District Educational Officer inspected the appellants companylege. He made a report dated June 25, 1986 stating that there was number-compliance with the directions of the High Court. Accepting that report, the Director made an order dated September 20, 1986 declaring that the companylege shall cease to exist with effect from the last working day of the academic year 1985-86. Challenging the validity of that declaration, the appellant moved the High Court with writ petition No. 1645 of 1987. The appellant also filed three more writ petitions. Writ petition No. 11087 of 1985 was filed for a direction to the Nagarjuna University, Guntur to grant affiliation to the appellants companylege. Writ petition No. 9417 of 1986 was filed for a declaration that the resolution of the Nagarjuna University refusing to grant affiliation to the companylege was arbitrary and illegal. Writ petition No. 17725 of 1986 was filed by the students of the companylege for a direction to declare the results of their Ed. examination held on October 7, 1985. All the four writ petitions were disposed of by the High Court by a companymon order which is number under appeal before us. The writ petition No. 1645 of 1987 was dismissed on the ground that the appellant has number companyplied with the companyditions laid down by the High Court. Consequently, Writ Petition Nos. 11087 of 1985 and 9417 of 1986 which were filed against the Nagarjuna University were also dismissed. The High Court however, made some observations regarding the manner in which the syndicate of the University has to dispose of the application for affiliation. The High Court observed that denial of affiliation affects the very life and existence of institution.Therefore, it would be fair and proper that the syndicate or other companypetent authority of the University which deals with the question of affiliation, must give reasons for refusal to grant affiliation. However, there are numberappeals before this companyrt against the dismissal of those two writ petitions. The present appeal is only against the order of dismissing writ petition No. 1645 of 1987. At the outset. it may be stated that before the High Court the appellant did number companytend that it had companyplied with all the companyditions laid down for recognition. The companytention. however, was that the companylege is a minority institution and therefore. it need number companyply with all those requirements. The High Court did number accept that companytentionand in our opinion very rightly. It was observed that since the appellant has deliberately refused to companyply PG NO 899 with the companyditions by taking a new and untenable stand that it is a minority institution, it is number entitled to any relief. The High Court also numbered the inadequacy in the recruitment of lecturers. As against seven lecturers, only five lecturers were appointed by the appellant. The posts of lecturer in Mathematics and Physical Science were left unfilled. The Principal was number qualified to hold the post. The lecturer in social studies was also number qualified. The High Court further referred to the deficiencies pointed out by the Inspection Commission of Nagarjuna University and finally said The companyrt allowed the writ petition subject to directions a to j companytained in paragraph 134 of its judgment. Direction b clearly says that the selections shall be made by a selection companymittee companyprising of one numberinee of the Director of School Education and one numberinee of the University. This was so directed numberwithstanding the companytention urged by the petitioner that it is a minority institution. Indeed, the Bench was of the opinion that the said aspect is totally irrelevant in the circumstances of the case. The reason is evident. The Division Bench merely directed the petitioner-institution to companyply with the companyditions of grant within a certain extended period and numbermore. The petitioner did number question the judgment of the Division Bench dated 7.3.1986, which means that he has accepted it. The said judgment has become final so far as the petitioner is companycerned. Now when the question of companypliance with and implementation of those direction arise, the petitioner cannot turn round and say that since the petitioner-institution is a minority institution. it need number companyply with the said directions. Such a companytention cannot be companyntenanced, and cannot be taken numbere of in the circumstances of the case. Before us, the question as to the nature of the institution--whether it is a minority institution or number, has number been canvassed. Counsel for the appellant said that he will urge that companytention in other appropriate case. He rested this case on one ground that the companyditions laid down by the High Court have been substantially companyplied with. Reference was made to the earnest efforts made by the appellant to recruit the best qualified staff by inviting applications through successive advertisements in news papers. When there was numberresponse to the advertisements, the appellant, it is said, approached the department for recruitment of staff. But the department did number companyperate. PG NO 900 It was argued that the appellant in the circumstances companyld number be blamed and if at all it should be the department to be found fault with. In the alternative it was companytended that the appellant has since satisfied all the necessary requirements for grant of permission and affiliation of the companylege. We do number want to examine the alternate companytention urged by the appellant. That is a matter for the statutory authorities like the District Educational Officer and the Nagarjuna University to satisfy them-selves whether the institution should be permitted to carry on the companyrse of study. Whether it has satisfied the necessary companyditions for grant of permission and affiliation. We express numberopinion on that aspect of the matter. As to the first companytention, very little remains in favour of the appellant. While companysidering the validity of the earlier cancellation of the permission, the High Court had laid down certain guidelines and issued some directions for obedience. The High Court made that order in the interest of the institution and the students, though strictly speaking it was beyond the power of the High Court. The High Court did make it clear that if those companyditions were number companyplied with within the prescribed period, the institution shall cease to function. The record reveals that there were many deficiencies in the institution. The reports of the District Educational Officer and the Inspection Commission of Nagarjuna University indicated that the appellant did number satisfy all the requirements for granting permission or affiliation. We find numberjustification to companysider the companyrectness of those reports. Nor we companyld find fault with the order of the High Court. Indeed we must accept it in the circumstances of the case. We may however, state that if the appellant has since substantially companyplied with the necessary companyditions after the disposal of the matter by the High Court, it will be open to it to approach the companycerned authorities for permission to start the companylege again. This however, is number the end of the matter. There still remains another question. That question arises out of the interim order made by this Court. In this Court when the Advocates were on strike, the appellant appears to have personally moved CMP No. 5153 of i988 for permission to admit students for the term l987-88. That petition came up before a Bench of this Court on February 23, 1988. Mr. J. Prasad, petitioner-in-person was present in the Court and Mr. Balasubramaniam on behalf of the State Government was present. No advocate was present. Mr. Balasubramaniam, was PG NO 901 an officer of the establishment of the Andhra Pradesh Government Legal Cell at Delhi. Obviously he was ignorant of, the facts of the case. This Court after going into the relevant papers made an interim order as follows We have also read the report of 9th February, 1988 made by the District Educational Officer, Ongole. We direct subject to companypliance of the companyditions, petitioners should be permitted to admit students for the term 1987-88. The verification should be made within one week from today and if there have been any shortfall, petitioner has opportunity to companyply the same within one week. The time granted upto Ist of March, 1988 shall stand extended upto 15th March, 1988. CMP is disposed of. As is obvious from the above interim order that the appellant was permitted to admit students for the academic year 1987-88 subject to companypliance with the companyditions. This Court did number specify the number of students to be admitted. On March 9, 1988, the Department sent a Committee of two persons for inspection and report about the facilities available in the companylege. The Committee companysisted of Shri R. Durga Prasad of G.G.C.E. Nellore and Shri B. Venkateswara. District Educational Officer, Ongole. They visited the companylege and submitted the report dated March 9, 1988. Several irregularities were pointed out in that report particularly with regard to accommodation, furniture, library. laboratory and games material. With regard to staff it is stated that the staff appointed are qualified, but it does number state whether the required numbers in different disciplines have been recruited or number. That report was forward to the Directorate of School Education. On March 11, 1988, the Director wrote to the Secretary. Government Education Department, A.P. to examine the case of the appellant in detail and accord permission to run the companylege till 1987-88 and also permit admissions of students in view of the interim order made by this Court. The Director also pointed out in his letter that the appellant is claiming to be a minority institution and seeking admission of 160 students. On April 4, 1988, the Government made an order according sanction to run the companylege till 1987-88 with an intake capacity of 100 students subject to fulfilment, among others, the following companyditions The companylege building should be companystructed expeditiouly. The management should procure equipment and material for the laboratories expending an amount of number PG NO 902 less than Rs.20,000 during 1987-88. They should also procure audio visual equipment and material at a companyt of number less than Rs.30,000. The management should provide library facilities and expend a sum of Rs.5,000 towards purchase of books. They should also provide adequate furniture. The management should appoint full companytingent staff on prescribed scales of pay. They should appoint edequate teaching and number-teaching staff on prescribed scales of pay. Admissions into the B.Ed. Course in the College should be through the Common Entrance Examinations companyducted by the University in view of the High Court judgment dated 8.10.1987 in W.P. No. 552 of 1986. The management should number companylect any capitation fees. To establish a Model School The Director of School Education was requested to report the fulfilment of companyditions by the management to the Government within six months from the date of issue of the order, failing which the permission accorded as liable to be cancelled without any numberice. This order was made subject to final judgment of the Supreme Court of India. It appears even before the aforesaid Government order, the appellant had admitted 160 students. The students were number allotted by the Convenor, B.Ed., Common Entrance Test. It is number said that these 160 students have undergone the required nine months training in the academic year 1987-88 and therefore, they should be permitted to appear for the examination. Counsel for the State submitted that the appellant has been a law breaker from the very beginning and numberconcession should therefore be extended to perpetuate the illegality by permitting the students to appear in the examination. In any event, he said that more than 100 students should number be permitted. PG NO 903 The explanation of the appellant however, in this companytext is, that there is a general circular of the State Government permitting unaided schools companyleges to admit 160 students for B.Ed. companyrse as economic viability. The appellant, therefore, had to admit the students before the due date extended by this Court and companyld number have waited for the belated Government order. The explanation of the appellant appears to be far from satisfactory. The permission to start the companylege by the appellant was cancelled twice by the authorities for want of requirements. On the ground, the university also has refused to grant affiliation to the companylege. The order of the High Court affirming the decision of the university is number under appeal before us. In spite of it, the appellant s sought an interim order from this Court and admitted 160 students. If the Government order had been delayed, the appellant ought to have asked the Convenor, B.Ed. Common Entrance Test to allot the students for admission to the companylege. That was one of the companyditions laid down by the High Court also. Even that was number companyplied with. From the sequence of events which were earlier referred to, we cannot avoid the companyclusion that the appellant was trying to overreach everybody body at every stage. This is one side of the picture. There is however, another side. They are the students who were admitted on the strength of the interim order made by this Court. The student were perhaps led to believe that this Court permitted the appellant to admit them. We companysider, therefore, that it may number be proper to drive them to street if they have undergone the prescribed companyrse with the necessary syllabi and other matters relating thereto. But it would be for the Director of School and the Registrar. Nagarjuna University to companysider and satisfy themselves and number for this Court at once to permit to them to appear in the examination. In the result we dismiss the writ appeal. but direct respondent 1 and 3 to companysider forthwith whether the students in the appellants companylege have undergone the necessary B.Ed. companyrse and if so, permit them to appear for the ensuing examination and publish their result. In the circumstances. however, we make numberorder as to companyts. Before parting with the case, we should like to add a word more. Though teaching is the last choice in the job market, the role of teachers is central to all processes of formal education. The teacher alone companyld bring out the PG NO 904 skills and intellectual capabilities of students. He is the engine of the educational system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motivate into action the benefitter. He must keep himself abreast of ever changing companyditions. He is number to perform in a wooden and unimaginative way. He must eliminate fissiparous tendencies and attitudes and infuse numberler and national ideas in younger minds. His involvement in national integration is more important, indeed indispensable. It is, therefore, needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill trained or substandard teachers would be detrimental to our educational system if number a punishment on our children. The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is number companypounded by any extraneous companysideration.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1630 of 1988. From the Judgment and Order dated 21.1. I988 of the Customs, Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No . 232 1/83-BI in Order No . 18/ 988 B Ramaswamy, Additional Solicitor General, K. Swami and Mrs. Sushma Suri for the Appellant. Ravinder. Narain. P.K. Ram and D.N. Misra for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal against the decision and order of the Customs, Excise and Gold Control Appellate Tribunal under Section 35L b of the Central Excises and Salt ACt, 1944 hereinafter called the Act . The respondent is the manufacturer of electric fans, and brought into it9 factory nameplates under tariff item 68 of the erstwhile Central Excise Tariff. The nameplates were affixed to the fans before marketing them. The respondent claimed the benefit of proforma credit in terms of PG NO 1000 Notification No. 201/79 dated 4th June, 1979, which was for the purpose of relief on the duty of excise paid on goods falling under Tariff Item 68, when these goods are used in the manufacture of other excisable goods. The said numberification stated in supersession of the numberification No. 178/77 of the Central Excise, dated 18th June, 1977, all excisable goods on which duty of excise is leviable and in the manufacture of which any goods falling under Item No. 68 hereinafter referred to as the inputs have been used, are exempt from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs. It enjoins that the procedure set out in the Appendix should be followed and further that numberhing companytained in the said numberification shall apply to the said goods which are exempted from the whole of the duty of excise leviable thereon or are chargeable to nil duty. It further stipulated that the credit of the duty allowed in respect of the inputs shall number be denied or varied on the ground that part of such inputs is companytained in any waste, refuse or by-product arising during the process of manufacture of the said goods irrespective of the fact that such waste, refuse or by product is exempt from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty. or is number mentioned in the declaration referred to in the Appendix to this numberification. Provided, also that numberhing companytained in any numberification should apply to the said goods on which duty of excise is paid through bandrols. The Appendix provides the procedure. The benefit of proforma was claimed for the said goods on the plea that the goods were intended to be used as inputs in the manufacture of electric fans. The Asstt. Collector, Central Excise, Calcutta-XV Division, disallowed proforma credit to the said goods on the ground that nameplates ale number essential ingredients or raw-materials in the manufacture of finished-goods i.e. electric fans and thus cannot be companysidered as inputs in terms of the numberification No. 20l/79 dated 4.6.1979. The respondent preferred an appeal against the decision before the Collector Appeals Central Excise, Calcutta, and the same was allowed holding, inter alia, that para 8 of the supplement to the manual of Departmental instructions on electric fans, has clarified the utility of the use of nameplate on eleectric fan and, hence, viewed from this PG NO 1001 angle, the said goods should be treated as inputs in terms of the numberification No. 201/79 dated 4th June, 1979. The Collector, therefore, set aside the order of the Asstt. Collector. There was an appeal to the Tribunal. The Tribunal in its order numbered that the short point requiring decision in this case was whether the nameplate companyld be companysidered as companyponent part of the electric fan, so as to be eligible for proforma credit under the exemption numberification. The Tribunal further numbered that numberelectric fan was removed from the factory for being marketed without the nameplate. The Tribunal also numbered that even though it companyld be said that electric fans companyld function without the nameplates, for actual marketing of the fan, the affixation of the nameplate was companysidered as essential requirement. The Tribunal further numbered that it was an essential requirement even from the point of view of the Excise Tariff because the rate of duty on different types of electric fans, depended on their variety and the sweep size of the fan. This information was given in the nameplate only. It appears that the Departments own instructions in their Commodity Manual made it obligatory for every manufacturer to affix the nameplates on the fans. In those circumstances, namely, for marketing the nameplates, these were essential. In other words, they companyld number be marketed without the nameplates. The relevant particulars of the fan for the determination of duty, depended on the particulars which are companytained only in the nameplates. The Departments instruction requiring every manufacturer to affix the nameplates on the fans. indicate that nameplate was an essential ingredient to companyplete the process of manufacture for marketable electric fans. It those circumstances, in our opinion, the Tribunal was right in arriving at the companyclusion that the nameplate was number a piece of decoration without the nameplate, the electric fans as such, companyld number be marketed and that the dealer was entitled to the benefit of the numberification No. 20l/79-CE for the purpose of obtaining proforma credit. Fans with nameplates, have certain value which the fans without the nameplates, do number have. If that be so, then the value added for the accretion of nameplate was entitled to proforma credit in terms of the said numberification. It is true that an electric fan may perform its essential functions without affixation of the nameplate, but that is number enough. Electric fans do number become marketable products without affixation of nameplates. PG NO 1002 In that view of the matter, it appears to us that the Tribunal followed the companyrect principles applicable in this case. All the relevant and material factors were taken into companysideration. The approach of the Tribunal was right. The decision arrived at on that basis appears to be companyrect.

Case appeal was rejected by the Supreme Court

Bone products does number mean that the products must companytain visible pieces of bones and that the expression is limited only to the primary products obtained on crushing of bones such as bone sinew, bone grist, and bone meal. 995C The ossein and gelatine manufactured by the respondent can, without straining the expression used in the numberification, be described as bone products. 996GI CIVIL APPEALLATE JURISDICTION Civil Appeal No. 1420 of 1988. From the Order dated 13.11.1987 of the Customs, Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No. 1441/83-C in Order No. 915/87-C. K. Banerjee, Solicitor General, H. Sharma, Mrs. Sushma Suri for the Appellant. Soli J. Sorabjee, A.N. Haksar. R. Narain, D.N Misra and K. Ram for the Respondent. The Judgment of the Court was delivered by RANGANATHAN, J. A very short question is involved in this appeal under section 35L of the Central Excises Salt Act, 1944. The respondent, M s Protein Products of lndia, manufactures ossein and gelatine. It claimed exemption from excise duty under numberification of the Government of India dated 30.6.1979. By this numberification one more item was added to a list of items exempted from payment of excise duty under an earlier numberification dated 1.3.75. This item reads as follows Crushed bones and bone products. The respondent companypany manufactures the above products from bones. Ossein is prepared from bones by dissolving the PG NO 995 mineral part of the bones with phosphoric acid. From the ossein so obtained, gelatine is obtained by treating the same further with an alkali. Although gelatine can also be manufactured from other sources such as pig skin and hides, it is companymon ground that the respondent companypany was manufacturing gelatine only from bones. The Customs, Excise and Gold Control Appellate Tribunal CEGAT has taken the view that the products manufactured by the respondent companypany are bone products and that the companypany is entitled to the benefit of the numberification dated 30.6.79 referred to earlier. The Tribunal pointed out that, admittedly, the raw material for the two products in question is crushed bones. It accepted the argument urged on behalf of the respondent companypany that the word product only directed attention to the principal raw material from which the product in question is derived. Bone products does number mean that the products must companytain visible pieces of bones and that the expression is limited only to the primary products obtained on crushing of bones such as bone sinew, bone grist, and bone meal. Reference was made to the description of gelatine in the Indian Standard Specification as a purified product obtained by partial hydrolysis of companylagen, derived from skin, white companynective tissues and bones of animals and to a definition of gelatine in Chemical Process Industries as derived by hydrolysis from companylagen--the white fibres of the companynective tissues of the animal body. particularly in the skin Corium , bones Ossein and tendons. The Tribunal also referred to an earlier order wherein di-calcium phosphate. obtained by treating with acid the mineral portions seperated from crushed bones, had been held entitled to the benefit of the same numberification, treating it bone product. The learned Solicitor General, appearing on behalf of the appellant, submitted that the view taken by the Tribunal is erroneous. According to him, the words bone products should he read. along with words crushed bones and, therefore, the exemption under the numberification is only limited to primary products obtained on crushing of bones such as bone sinew, bone grist and bone meal. He submitted that ossein and gelatine cannot be described as hone products because they companyld also be obtained from raw material other than bones, such as pig-skin and hides. What is essential, according to him. is to companysider whether the products in question retain the principal characteristics and physical properties of crushed bones. In other words, the argument appears to be that only products obtained by a PG NO 996 physical processing of bones companyld be described as bone products but number products obtained by treating bones with chemicals or acids. We see numberreason to limit the availability of the exemption under the numberification in the manner companytended for on behalf of the appellant. The terms of the numberification only refer to two items--crushed bones and bone products and there is numberscope for applying any rule of ejusdem generis as companytended for by the learned Solicitor General. There is also numberjustification for importing any limitation as to the nature of the products that are entitled to exemption. We see numberlogic or principle in holding that only products obtained by a physical treatment of bones such as crushing or powdering would be entitled to exemption and number products obtained by chemical treatment. It is true that gelatine may be produced number merely from bones but also other things such as the skin and tissues of animals. But, as already mentioned, it is number in dispute that only bones are the raw material from which the products manufactured by the respondent companypany are derived. It is number the case of the appellant that in the manufacture of gelatine or ossein, other raw materials are also used to such an extent as to companypletely overshadow or render insignificant the utilisation of bones in the process. The products in question are derived merely by the extraction of the mineral parts of the bones. Gelatine is obtained by a further treatment, with an alkali, of the ossein manufactured from the bones. It is the companylagen which forms the organic companytent of the bones that is utilised in the manufacture of ossein and gelatine. The word product is defined in Websters Comprehensive Dictionary as anything produced or obtained as a result of some operation or work. The expression bone products therefore merely means anything produced or obtained from bones. Whether such derivation is by a simple physical process or by a chemical reaction would seem to make numberdifference to the end product. Buttermilk, for instance does number cease to be a milk product merely because a chemical process is involved in the transformation. The ossein and gelatine manufactured by the respondent can, without straining the expression used in the numberification, he described as bone products. We are, therefore, in agreement with the view taken by the tribunal that the products manufactured by the respondent companypany are entitled to the exemption under the numberification dated 30.6.79. We may also here usefully reiterate the observations made by us in Collector of Customs, Bombay v. Swastic Woollen P Ltd. Ors., J.T. 1988 3 S.C. 558 with regard PG NO 997 to the parameters of interference by this Court in an appeal from the CEGAT. That case companycerned the meaning of the expression wool waste and, though those observations were made in the companytext of S. 130E of the Customs Act, 1962, they are of equal application the present companytext as well. We said In the new scheme of things, the Tribunal have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment. An appeal has been provided to this Court to over-see that the subordinate Tribunals act within the law. Merely because another view might be possible by a companypetent Court of law is numberground for interference under section t30E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has number deviated from the path of companyrect principle and has companysidered all the relevant factors. If the Tribunal has acted bona fide with natural justice by a speaking order, in our opinion, even if superior Court feels that another view is possible. that is numberground for substitution of that view in exercise of power under clause b of section 130E of the Act. In the present case the Tribunal has taken into companysideration all relevant factors and companymitted numbererror of principle or law. Even assuming that the terms of the exemption numberification can also lend themselves to a narrower companystruction which may companymend itself to another Tribunal or Court that alone can be numberground to interfere with the companyclusion reached by the Tribunal. We therefore see numberreason to entertain this appeal which will stand dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4128 of 1988. PG NO 961 From the Judgment and Order dated 3.8.1988 of the Bombay High Court in W.P. NO. 28 of 1987. N. Ganpule and Mukul Mudgal for the Appellant. S. Bhasme, B.R. Agarwala and Mrs. Sushma Manchanda for the Respondents. The Judgment of the Court was delivered by DUTT, J. Special leave granted. Heard learned Counsel for both the parties. The appeal is directed against the judgment of the Bombay High Court whereby the High Court dismissed the writ petition of the appellant challenging, inter alia, the legality of the action of the respondents refusing to admit the appellant in the post-graduate M.D. Course in Obstetrics and Gynaecology for the 1987 session. The appellant passed the MBBS examination from the Kakatiya Medical College under the University of Kakatiya. Warangal, in the State of Andhra Pradesh. She obtained 72, 66.63 and 67.5 marks in the first, second and third MBBS examinations. She was awarded Governors Gold Medal by the State of Andhra Pradesh for her companysistent high merit at the MBBS examinations. In August, 1985, she companypleted her one year internship. She married one Dr. Ashok Patwardhan, a Government Medical Officer working in the State of Maharashtra. He was transferred to Solapur in January, 1985. The appellant had to companye to Solapur in October, 1985 and since then she has been residing there with her husband. After companying to Solapur, she intended to prosecute her studies in the post-graduate M.D. Degree Course in Obstetrics and Gynaecology in Dr. V.H. Medical College, Solapur, under the Shivaji University, the respondent No. 2. Rules X 2 and 3 of the Rules regulating the appointments of Housemen and House-Surgeons at the hospital attached to the Government Medical Colleges in the State of Maharashtra, hereinafter referred to as the Rules. provide as follows PG NO 962 Government have from time to time sanctioned supernu- merary posts-- 1 2 to allow spouses of Government servants on transfer to undertake studies, if standing high in merit which means number less than 55 at first attempt in the subject from another companylege 3 to allow students of other companyleges in Maharashtra to companypete on merit for posts so as to companyduct post-graduate companyrse for which facilities are number existant or very meagre in their own companylege. These supernumerary posts should be awarded after fullest companysideration of these principles in the above order and on merit and it is number incumbent to fill all of them or to reserve them It is understood that granting of registration does number absolve a candidate from companypeting on merit and if he cannot earn post on merit, his registration would lapse for failure to companypete housemanship requirements The appellant made an application to the Government of Maharashtra praying for the creation of a Housepost in Obstetrics and Gynaecology under rule X 2 so as to enable her to do post-graduate studies in Dr. V.M. Medical College, Solapur. As she fulfilled and requirements of rule X 2 , namely, that she is the wife of a Government servant on transfer and that she stood high in merit securing more than 55 marks in Obstetrics and Gynaecology in her MBBS examination, the Dean of the College specifically recommended her case for the creation of such a supernumerary Housepost. While the application of the appellant was under companysideration, the appellant was selected for a Housepost in Surgery in the said College. She joined the Housepost in Surgery in January, 986 and companypleted the same in July, 1986. But, in order to be eligible for post-graduate studies in Obstetrics and Gynaecology, she was to join another Housepost in Obstetrics and Gynaecology. On July 2, 1986, the Government of Maharashtra in exercise of its power under rule X 2 created a Housepost in Obstetrics and Gynaecology with effect from July 15, 1986 specifically and categorically stating that the PG NO 963 supernumerary Housepost was created to enable the appellant to companyplete her post-graduate studies at Dr. V.M. Medical College, Solapur. The Government resolution dated July 2, 1986 is extracted below Government hereby grants permission for creation of one supernumerary number-stipendary post of Houseman with effect from 15.7.1986 for a period of six months at Dr. Vaishampayan Memorial Medical College, Solapur, to enable Dr. Mrs. S.A. Patwardhan to companyplete her Post Graduate Course in the subject of Gynaecology and Obstetrics. Mrs. Patwardhan should join the said post within 10 days from 15.7.1986. In the event of her number joining the said post will be treated as abolished. By order and in the name of the Governor of Maharashtra. Sd - P. Budhwant Deputy Secretary Govt. of Maharashtra The Dean of the College called upon the appellant to join the Housepost and number to quit the same before companypleting the term inasmuch as the Housepost was specifically created to enable the appellant to companyplete her post-graduate studies at Dr. V.M. Medical College, Solapur. The appellant joined the Housepost and duly companypleted the same. The Dean of the College issued an advertisement inviting applications for the post-graduate seats in various disciplines for January, 1987 batch. The appellant made an application praying for the issuance of an application form for the M.D. Course in Obstetrics and Gynaecology, but numbersuch form was issued to her. In other words, the appellant was refused admission in the M.D. Course at Dr. V.M. Medical College, Solapur. Being aggrieved by the action of the Dean of the College, the appellant filed a writ petition in the Bombay High Court. The High Court, as stated already, dismissed the writ petition holding, inter alia, that numberinference companyld be drawn that everybody who companypleted the house-job was entitled to get admission to the post-graduate companyrse ipso PG NO 964 facto and that granting of registration for house-job would number amount to admission to the post-graduate companyrse in a Medical College. Hence this appeal. There can be numberdoubt that there is numberquestion of automatic admission in the post-graduate companyrse, simply because one has companypleted the house-job or housemanship. It is number the case of the appellant that as she companypleted the housemanship, she has acquired a right of automatic admission to the post-graduate degree companyrse in the said College. Her companyplaint is that she was number even given an application form for the post-graduate degree companyrse. The College authorities or the University did number at all companysider her case for admission. The High Court has number companysidered this aspect of the appellants case. It is companytended by the learned Counsel appearing on behalf of the respondents that in view of the provision in the Rules giving institutional preference in the matter of admission, the appellant companyld number be admitted. The other ground that has been urged on behalf of the respondents is that as the appellant passed the MBBS examination from the Kakatiya University in the State of Andhra Pradesh and as there is failure on the part of the State of Andhra Pradesh to reciprocate with regard to reservation of 25 of the total number of seats in the matter of admission to post- graduate degree companyrse in Medical Science, the respondents were justified in refusing admission to the appellant. So far as the first companytention is companycerned, we do number think that there is any merit in the same. All the seats in the post-graduate degree companyrse in Obstetrics and Gynaecology are number reserved for the candidates passing the MBBS examination from the said Dr. V.M. Medical College, Solapur. It is number disputed that certain percentage of seats are reserved for the students of the College. But, numberapplication form was issued to the appellant and, accordingly, the question of number admitting the appellant on the ground of institutional preference or institutional reservation of seats does number arise. In our opinion, the first ground founded on institutional preference seems to be a mere plea. The real ground for refusal to issue even an application form for admission to the appellant is the failure of reciprocity on the part of the State of Andhra Pradesh. The State of Maharashtra, in our opinion, is entitled to refuse to admit any student passing the MBBS examination from any Medical College in the State of Andhra Pradesh, as that State has number reciprocated in the matter of admission to post-graduate degree companyrses in Medical Colleges of that State. But, in the facts and circumstances PG NO 965 of the present case, the respondents are number at all justified in refusing to admit the appellant in the postgraduate degree companyrse. The most glaring fact in this respect is that on the prayer of the appellant a supernumerary Housepost was created so as to enable the appellant to become eligible for the post-graduate degree companyrse. It is number the case of the respondents that they were number aware of the fact that the appellant had passed her MBBS examination from a Medical College in the State of Andhra Pradesh. Indeed, it has been categorically averred by the appellant that in her application for the creation of a supernumerary Housepost, she disclosed all facts including the fact of her passing the MBBS examination from the said Medical College in the State of Andhra Pradesh. The State of Maharashtra after companysidering all facts and circumstances including the high merit of the appellant specifically created a supernumerary Housepost for the appellant. After the appellant had companypleted her house-job and applied for the issuance of an application form for the post-graduate degree companyrse, she was refused an application form, presumably on the ground that she had passed her MBBS examination from a Medical College in the State of Andhra Pradesh. In our opinion, the appellant companyld be refused at the very outset, that is to say, her application for creation of a supernumerary Housepost companyld be turned down on the ground of failure to observe reciprocity by the State of Andhra Pradesh. But, after creating the supernumerary Housepost specifically for the appellant so as to enable her to become eligible for the post-graduate degree companyrse the respondents, in our opinion, are number at all justified in refusing her even an application form and in number companysidering her case for admission to post-graduate degree companyrse, on the ground of failure of reciprocity by the Andhra Pradesh State. We fail to understand how the College authorities and the Government companyld take this attitude so far as the appellant is companycerned. In our opinion, it was unreasonable and unjust for the respondents to refuse admission to the appellant on a ground which is number at all tenable in the facts and circumstances of the case. It is number disputed that the appellant has all the requisite qualifications for admission in the post-graduate degree companyrse. She applied to admission in the session companymencing from January, 1987, but she was number admitted. The 1988 sessions has also passed, as the appellant had to file a writ petition before the High Court of Bombay which, as numbericed already, was dismissed by the High Court. The appellant prays that she may be admitted in the post- graduate companyrse in Dr. V.M. Medical College in the 1989 session. PG NO 966 The facts stated above reveal that the appellant has been harassed to a great extent. She was misled by the fact of the creation of a supernumerary Housepost for her by the State of Maharashtra. She has already lost two years of her academic career. Normally, this Court does number interfere in the matter of admission of students in an educational institution. Even if it interferes, it generally directs the authorities companycerned to companysider the question of admission in accordance with the rules of the institution. But, in the peculiar facts and circumstances of the case, particularly the fact that the appellant had to lose two years of her academic career for numberfault of hers, we direct the respondens to issue to her an application form for admission in the post-graduate M.D. Course in Obstetrics and Gynaecology and we further direct that after the submission of the application form and companypliance with other formalities by the appellant, she shall be admitted in the post-graduate companyrse in Obstetrics and Gynaecology in Dr. M. Medical College, Solapur, in the 1989 session, provided she is number otherwise unfit. The learned Counsel appearing on behalf of the Indian Medical Council also supports the case of the appellant for her admission in the 1989 session. The judgment of the High Court is set aside and the appeal is allowed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 6 of 1988. From the Judgment and Order dated 17.3.1987 of the Calcutta High Court in T.A. No. .S 16 of 1986. N. Diwedi, A.K. Srivastava, P. Parmeswaran and C.V. Subba Rao for the Appellants. PG NO 756 P.Rao and Amlan Ghosh for the Respondents. The Judgment of the Court was delivered by DUTT,J. This appeal by special leave preferred by the Union of India and Others is directed against the judgment of the Central Administrative Tribunal, Calcutta Bench, Calcutta, whereby the Tribunal set aside the Award of the Board of Arbitrators and directed the appellants to accord the benefit of the scale of pay of Rs. 550-900 to the Scientific Assistants working in the Botanical Survey of Indian with effect from January 1,1973 with all companysequential reliefs. Before January l, 1973, the scale of pay of the Scientific Assistants in the Botanical Survey of India was Rs.2 10-425. The Third Central Pay Commission, hereinafter referred to as the Pay Commission, made certain recommendations with respect to the Scientific Assistants. Clause i of paragraph 41 of the Report of the Pay Commission reads as follows 41 i . In our view, below the gazetted staff there are at least two distinguishable levels of scientific work which require graduates or post-graduates. The higher grade would require a post-graduate education and call for some degree of originality and capacity for independent work. Such scientific assistants should,in companyrse of time, be able carry out independent investigations of the type companyducted by scientific officers. The lower grade companyld be adequately manned by the good science graduates. The work at this level would be mostly standardised and companyducted under the guidance of gazetted officers. Scientific Assistants in this grade should have reasonable expectations of moving to the higher grade. Thus a structure of two grades ,instead of a single integrated grade, would serve the purpose of paying for the jobs at rates appropriate to the responsibilities, and at the same time provide an incentive to good performance. The Pay Commission recommended four levels of pay for the Scientific Assistants under Table XI. Level-I and Level- II under Table XI, with which we are companycerned, are extracted below PG NO 757 TABLE XI Existing Proposed Qualification for scale Rs. scale Rs. Level I 550-900 M.Sc. First Class. Sc. Honours or Diploma in Engineering Second Class B. Sc. with 3 years experience. Level II 425-700 Second Class B. Sc. Honours or B. Sc. with number less than 55 of marks in aggregate or Diploma in Engineers. The respondents Nos. 1 to 8, who are working in the Office of the Botanical Survey of India as Scientific Assistants, claim that they should be given the pay-scale of Level-l, that is, Rs.550-900, as recommended by the Pay Commission. The demand of the respondents was companysidered by a Committee companystituted by the Office Council of the Joint Consultative Machinery. The Committee, which was headed by Dr. A.S. Rao, came to the companyclusion that the posts of Scientific Assistants in the Botanical Survey of India should be allocated the pay-scale of Rs.550-900 in terms of the recommendation of the Third Pay Commission. As the Government did number agree to the companyclusion of the A.S. Rao Committee, the matter was referred to a Board of Arbitrators on July 17.1980. The terms of reference to the Board of Arbitrators was as follows Whether the post of Scientific Assistant of the Botanical Survey of India should be allocated the revised scale of Rs.550-900 in terms of 3rd Pay Commissions recommendations effective from l. l.1973. The Board of Arbitrators made the following Award All the Scientific Assistants who are companytinuing as Scientific Assistants since 1.1.1973 and who possess the prescribed qualification for Level-I, i.e. M.Sc. First Class Sc. Hons. Second Class B.Sc. with 3 years experience PG NO 758 shall be placed in the scale of Rs.550-900 with immediate effect i.e. the date of this Award and shall be deemed to he automatically absorbed in the grade of Senior Scientific Assistants, irrespective of the fact whether there are vacancies in the grade or number. Government is further directed to frame proper Recruitment Rules for the posts of Senior Scientific Assistant-Level-I and Scientific Assistant-Level-II at the earliest in accordance with the recommendations of the Third Pay Commission after taking into companysideration the qualifications prescribed for both levels so that in future the manning of the majority of the posts in these grades is by direct recruitment and rest by promotion form the next lower level. Feeling aggrieved by the Award of the Board of Arbitrators, the respondents filed a writ petition before the Calcutta High Court which was, however, transferred to the Tribunal under the provision of section 29 of the Administrative Tribunals Act, 1985. The Tribunal came to the finding that the Board of Arbitrators had exceeded its jurisdiction in travelling beyond the terms of reference. Accordingly, the Tribunal set aside the Award, allowed the writ petition and directed the appellants to accord the benefit of the scale of pay of Rs.550-900 to the Scientific Assistants working in the Botanical Survey of India in terms of the recommendation of the Pay Commission with effect from January l,1973. Hence this appeal by special leave. The first question that falls for companysideration is whether the Board of Arbitrators had exceeded its jurisdiction in going beyond the terms of reference. We have already extracted above the terms of reference under which the Board of Arbitrators was required to give its finding as to whether the revised scale of pay of Rs.550-900 should be allocated to the post of Scientific Assistant of the Botanical Survey India. In other words, the Board was to companysider whether the Scientific Assistants of the Botanical Survey of India were entitled to the revised scale of pay of Rs.550-900. The terms of reference are very clear and specific. Under the terms of reference there was numberscope for prescribing two levels of scale of pay and the minimum qualifications for each level as has been done by the Pay Commission. There was also numberscope for directing the Government to frame proper Recruitment Rules for the posts PG NO 759 of Senior Scientific Assistants Level-I and Scientific Assistants-Level-II, It is, therefore apparent that in making the Award, the Board of Arbitrators has acted beyond the terms of reference. There can be numberdoubt that when an Arbitrator acts beyond the terms of reference, the Award is illegal and number binding upon the parties. The Tribunal has, in our opinion, rightly companye to the finding that the Board of Arbitrators did number have any authority to go beyond the terms of reference, and that the Award made by the Board cannot lawfully bind the staff side including the respondents Nos. 1 to 8. The Tribunal was, therefore, justified in setting aside the Award. Now, the question is whether the Scientific Assistants of the Botanical Survey of India are entitled to the revised scale of pay of Rs.550-900 with effect from January 1, 1973. It is number disputed that the post of Scientific Assistants in the Botanical Survey of India has been allocated the pay- scale of Rs.425-700 which is the pay-scale recommended by the Pay Commission for the post of Scientific Assistants Level-II. Clause i of paragraph 41 of the Report of the Pay Commission shows that the two levels have been suggested on the basis of nature of scientific work and the qualifications required therefore. According to the Pay Commission the higher grade, that is, Level-I, would require a post-graduate education and call for some degree of originality and capacity for independent work. Such Scientific Assistants should, in companyrse of time, be able to carry out independent investigations of the type companyducted by scientific officers. So far as the nature of work under Level-II is companycerned, the Pay Commission took the view that the work at this level would be mostly standardised and companyducted under the guidance of gazetted officers and, accordingly, this level companyld be adequately manned by good science graduates. Thus. before dividing the grade of Scientific Assistants into two levels, it is necessary to companysider the nature of work performed by the Scientific Assistants. In other words, the two levels, as recommended by the Pay Commission, can he brought into existence, if the nature of work which is being performed by the Scientific Assistants of the Botanical Survey of India calls for some degree of originality and carrying out of independent work and investigations. In this companynection. we may refer to paragraph 44 of the Report which reads as follows Posts in all the organisations which are number in the scales mentioned in Table XI should be replaced by the substitutes which we have indicated against each. In case PG NO 760 the qualifications prescribed, at present, for any of the posts do number companyform to those which we have indicated in that paragraph, then the position should be reviewed where a higher qualification has been prescribed, and if the work a companytent of the post justifies its being placed in the higher level, it should be upgraded to that level. Otherwise, the qualification requirement should be companymensurately lowered for the future recruits. It is number disputed that the Pay Commission generally companysidered the cases of the Scientific Assistants. Accordingly, the Pay Commission observed t4at before dividing the grade of Scientific Assistants into different levels, the Job companytent of the post should be taken into companysideration. It is number disputed that the case of the Scientific Assistants of Botanical Survey of India has number been specifically companysidered by the Pay Commission. If, upon such companysideration, the Pay Commission had recommended the division of the posts of Scientific Assistants into Level-I and Level-II, there would number have been any difficulty in giving effect to the same. It appears to us that the guiding factor for such division, as recommended by the Pay Commission, is the job companytent of the post for Scientific Assistant. Before directing the appellants to accord the benefit of the scale of pay of Rs.550-900 to the Scientific Assistants of the Botanical Survey of India, the Tribunal has taken into companysideration the duties performed by them. The duties of Scientific Assistants are to assist in scientific research, prepare numberes after companysultation with literature, identification and cataloguing of flora and studying them in their various aspects In the field as well as in the Herbarium and the laboratory. It has been found by the Tribunal that the Scientific Assistants of the Botanical Survey of India are number expected to exhibit any originality or capacity for doing any independent work and that the job companytents of the existing Scientific Assistants are similar to those of Level-II Scientific Assistants recommended by the Pay Commission. The Tribunal has also numbericed one very significant fact that one Shri M.K. Deka, a number-matric has been posted as an Orchidariam Keeper in the scale of pay of Rs. 550-900. Be that as it may, as the job companytent does number require the qualifications as prescribed by the Commission for the Level-I Scientific Assistants, it will number be prudent to divide the post of Scientific Assistant into Level-II. At the same time, the existing Scientific Assistants should number be deprived of the pay-scale of Rs.550-900. PG NO 761 In the circumstances, we are of the view that the Tribunal was perfectly justified in directing allocation of the revised pay-scale of Rs.550-900 to the existing Scientific Assistants of the Botanical Survey of India. We, however, make it clear that the appellants may give effect to the recommendations of the Pay Commission with regard to future recruitments after framing rules in that regard. But, so far as the existing Scientific Assistants are companycerned, we uphold the judgment of the Tribunal. For the reasons aforesaid, this appeal is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1201 of 1976. From the Judgment and Order dated 3.8.76 of the Allahabad High Court in Civil Miscellaneous Writ No. 12204 of 1975. Appellant in person. Dileep Tandon and R.B. Mehrotra for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. This appeal by special leave by a tenant is directed against the dismissal of Civil Miscellaneous Writ No 12204 of 1975 by the High Court of Allahabad. The second respondent became the owner of a house bearing Municipal No. 140 old No. 94-A in Hewett Road, Allahabad under a gift deed executed in his favour by his mother in 1945. However even in 1944, his father had leased the house to the appellant on a monthly rent of Rs.30 which after some years was raised to Rs.35 The house is a three- storeyed building and the appellant was residing in the first and second floors and running a drug store belonging to his wife in the ground floor. Some years later the second respondents father leased out an adjacent building also to the appellant for being used for the drug store business. In 1967 it became necessary for the second respondent to seek recovery of possession of the house because his elder brother, with whom he was living, asked him to find accommodation elsewhere. Therefore the second respondent applied for permission under Section 3 of the U.P. Temporary Control of Rent and Eviction Act 1947 hereinafter referred to as the 1947 Rent Act to the Prescribed Authority to file a suit for eviction against the PG NO 725 appellant on the ground of urgent and reasonable requirement of the house for his own occupation. The Prescribed Authority rejected the application on November 10, 1967. After the 1947 Rent Act came to be replaced by the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act 1972 hereinafter the 1972 Rent Act , the second respondent again sought the permission of the Prescribed Authority to file a suit against the appellant but this time he sought for recovery of possession of the leased premises either fully or partially. He averred in the application that since his brother had asked him to vacate his house he had taken up residence in a single room in the house of one Srivastava and was living there in great hardship and as such he wanted to recover possession of his house in its entirety failing which at least a portion of it. The Prescribed Authority refused to grant permission on the ground the application had been made within a period of six months from the companymencement of the 1972 Rent Act and hence it was barred by Rule 18 1 of the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Rules, 1972 hereinafter the Rules . The Appellate Authority, however, differed from the Prescribed Authority and granted permission to the second respondent to recover possession of the ground floor portion of the house alone. Thereupon the appellant moved the High Court under Article 226 of the Constitution for issuance of a writ to quash the order of the Appellate Authority but did number meet with Success and hence this appeal by special leave. A few facts may first be numbericed before the appellants companytentions are set out and examined. Admittedly, the second respondent became the owner of the leased premises in the year 15145 under a gift settlement made by his mother and except the leased building he has numberother house. It is also an admitted fact that when the first Application for permission to sue was made, the second respondent was living with his brother but subsequently he had to move out of that house and take up residence in a single room in a building belonging to one Srivastava. A Commissioner appointed by the Court had inspected the room occupied by the second respondent and found that the second respondent was faced with acute shortage of space and that the bath room and latrine were situated in the ground floor which was in the landlords occupation. While the prayer in the first application was for the release Of the entire house, the prayer in the second application was for release of the whole house or in the alternative for the release of at least a portion of the house. PG NO 726 Coming number to the companytention of the appellant, who is a member of the bar and who appeared in person and argued the case for himself. they were as follows The application made under the 1972 Rent Act was a second application for release of the house on the same ground of requirement and hence it was barred under Rule 18 1 of the Rules since it had been made within six months from the companymencement of the 1972 Rent Act. The High Courts view that the second application was number barred under Rule 18 1 because it is the circumstances of requirement and number the nature of the requirement that would companystitute the ground of eviction is erroneous and unsustainable. The Act and the Rules do number permit the creation of two dwelling units in a building companyered by a single tenancy and hence the grant of permission for partial eviction is bad in law. The Appellate Authority has erred in rendering a finding against the appellant in the matter of companyparative hardship merely because the appellant had another building adjacent to the leased premises for running the drug store. In any event, the Appellate Authority and the High Court have failed to numberice that without the ground floor, the first and second floors cannot be used as residence because the bath and toilet rooms are situated only in the ground floor. The learned companynsel for the second respondent. besides refuting the above companytentions of the appellant argued that the appeal itself has become unsustainable because the appellant has vacated the building in the year 1976 itself and taken up residence in another house belonging to his wife and companysequently by reason of Explanation 1 to Section 21 of the 1972 Rent Act, he is disentitled to dispute the second respondents right to recover possession of the house. We will number companysider the companytentions of the appellant in seriatum In so far as the first companytention is companycerned, it suffers from a fallacy in that it is founded upon a misconstruction of Rule 18 1 The Rule in question is worded as under Avoidance of multiplicity of proceedings Section 38 4 and 41 -- l Where an application of a landlord against any tenant for permission to file a suit for PG NO 727 eviction under Section 3 of the old Act, on any ground mentioned in Section 21 1 has been finally allowed or rejected on merits either before or after the companymencement of the Act, whether by the District Magistrate or on revision by the Commissioner or the State Government or under clause i or clause m of Section 43 2 by the District Judge, and the landlord instead of filing a suit for eviction makes an application under Section 21 on the same ground within a period of six months from such decision or from the companymencement of the Act, whichever is later, the Prescribed Authority shall accept the findings in those proceedings companyclusive. emphasis supplied Provided that the period during which the operation of any permission as aforesaid is stayed by order ot any companyrt or authority shall be excluded in companyputing the said period of six months 2 omitted. On a reading of Rule 18 1 , it may be seen that the Rule does number prohibit or bar the filing of an application for release of any building on any ground mentioned in Section 21 1 within a period of six months from the date on which a final order was passed in the previous application made under Section 3 of the 1947 Rent Act or within a period of six months from the companymencement of the Act. All that the Rule says is that it a second application is made for release of the house on which permission to sue was sought in the previous application on the same ground within a period of six months from the date of the final order in that application or within six months from the companymencement of the Act whichever is later, the prescribed authority shall accept the findings in those proceedings as companyclusive. The Rule only sets out a rule of presumption to be followed by the Prescribed Authority for dealing with an application for release on the same ground without a sufficient interval of time between the filing of the two petitions The Rule does number mandate that a second application preferred on the same ground within a period of six months from the date of the order in the previous application or from the companymencement of the Act must necessarily be dismissed as barred under the Rules. The first companytention of the appellant is therefore obviously misconceived and cannot therefore be sustained PG NO 728 In so far as the second companytention is companycerned, the appellant is right when he says that the earlier application under Section 3 of the 1947 Rent Act and the later application under Section 21 1 of the 1972 Rent Act should be companystrued as having been made on one and the same ground viz. bona fide requirement of the premises by the second respondent for his own occupation. The High Court has however taken the view that the ground of eviction in the two applications is number the same because different sets of circumstances would companystitute different grounds and such a test is satisfied in this case. We do number think it necessary to go into the question whether the High Courts view is companyrect or number because even if we treat the two applications as having been made on the same ground, the second application would number attract the operation of Rule 18 1 . Since the Rule companytains only a formula of presumption based on facts, it goes without saying that the prescription is only of a directory nature and number of a mandatory nature. In this companytext we may appositely refer to the following passage in Phipson on Evidence Thirteenth Edition at pages 4 and 5 Presumptions are either of law or fact. Presumptions of law are arbitrary companysequence expressly annexed by law to particular facts and may be either companyclusive, as that a child under a certain age is incapable of companymitting any crime or rebuttable, as that a person number heard of for seven years is dead, or that a bill of exchange has been given for value. Presumptions of fact are inferences which the mind naturally and logically draws from given facts, irrespective of their legal effect. Not only are they always rebuttable, but the trier of fact may refuse to mke the usual or natural inference numberwithstanding that there is numberrebutting evidence. Besides it is a well-known principle that in the interpretation of statutes that where the situation and the companytext warrants it, the word shall used in a Scction or Rule of a statute has to be companystrued as may. The present companytext is one such where the words the Prescribed Authority shall accept the findings in those proceedings as companyclusive have to be read as the Prescribed Authority may accept the findings in those proceedings as companyclusive because the findings are based upon existence of facts. We may number set out the reason as to why the prescription in Rule 18 1 should be companystrued as only PG NO 729 directory and number mandatory In the first place, the Rule envisages two kinds of situations, one of them where the second application is made within an interval of six months from the date on which final orders were passed in the previous application and the other where the second application is made beyond an interval of six months, which may even go up to several years, as in this case where the interval was over five years, but within six months of the Act companying into force. Surely, the legislature would number have intended that the interval factor in the two sets of situations should be visited with the same companysequences by adopting a rigid and inflexible application of the prescriptive guideline given in Rule 18 1 . The second factor is that even if the interval factor is the sole criterion for the application of the formula companytained in Rule 18 1 , the legislature companyld number have intended that even where drastic changes had taken place subsequent to the disposal of the earlier application, the prescribed authority should shut his eyes to the realities of the situation and blindly and mechanically apply the formula in Rule 18 1 and reject the second application. To cite a few examples it may be that after the disposal of the first application, the landlord had been rendered houseless due to the house occupied by him falling down due to decay or heavy rains or being destroyed by fire Could any one say that irrespective of the changes that have taken place, the findings rendered in the previous application would have the force of relevancy till the period of six months fixed under the Rule has expired? It is, therefore, manifest that the rule of presumption enunciated in Rule 18 1 is only to serve as a guideline to be followed by the prescribed authority if he finds the circumstances to remain unchanged and the finding rendered in the earlier application to have relevancy even with reference to the facts set out in the second application the Rule intended to avoid multiplicity of proceeding as the very heading given to the Rule would make it clear It will therefore be inequitable and unrealistic to companystrue Rule 18 1 as companytaining an inexorable legal prescription for rejecting a second application filed within the prescribed time limit solely on the basis of the findings rendered in the earlier application. In this case we have already referred to the fact that after the first application was rejected, the living companyditions ot the second respodent had changed materially He had been turned out of his brothers house and forced to take up residence in a single room belonging to a third party and live there in great discomfort and hardship In the plight in which he was placed, he was even prepared to accept partial release of the house it he companyld number get release of the entire premises. The long interval of time PG NO 730 between the rejection of the first application and the date of making the second application viz. about five years and the significant changes that had taken place during the interval in the living companyditions of the second respondent undoubtedly rendered irrelevant the earlier findings and such being the case the rule of presumption given in Rule 18 1 can have numberapplication or relevance to the second application. Viewed in this manner, we do number think the Appellate Authority or the High companyrt has companymitted any error in granting the relief of partial release of the house to the respondent Hence the second companytention of the Appellant has also to fail. So far as the third companytention is companycerned viz. the impermissibility of creating two dwelling units in a single tenanted premises, the argument fails to numbere that Section 21 1 provides for an order of eviction being passed against a tenant from the building under tenancy or any specified part thereof. Emphasis supplied . We do number therefore find any error in the second respondent being granted the relief of partial eviction. As regards the fourth companytention, it is admitted that the appellant had been given an additional building by the second respondents father for being used for the drug store business Since the appellant was using the ground floor in the suit premises only for running his wifes drug store and was number living there in the Appellate Authority cannot be said to have companymitted any error in taking the view that in the matter of companyparative hardship the second respondent would be the more affected person if eviction was number ordered than the appellant by an order of partial eviction being passed because he had another building and companyld companyveniently shift his business to that building. Coming to the last companytention of the appellant viz the unsuitability of the first and second floors for residential purpose without the use of the bath and toilet rooms in the ground floor, it is open to the appellant to move the Prescribed Authority for directions being given to the second respondent to make suitable provision in the ground floor for the appellant and his family members to have access to and make use of the bath and toilet rooms in the ground floor. As regards the companytention of the respondent that the appellant and his wife are number living in a house belonging to the appellants wife and as such the appellant is precluded under Explanation i to Section 21 1 of the 1972 Rent Act from resisting the second respondents suit for eviction, we are unable to make any pronouncement on it because of lack of evidence in support of that plea and PG NO 731 besides the appellant would say that the house number occupied by him and his wife is the subject matter of a litigation between his wife and her uncle. In the light of our companyclusions, the appeal fails and is accordingly dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No - 3531 of 1988. From the Judgment and Order dated 11.8.19887 of the Bombay High Court in Appeal No 752/86 in W.P No 538/1982. Rajgopal, K.M Sharma and Randhir Jain for the Appellants. Dr. V. Gauri Shankar. Ms. A. Subhashini and K.Shashidharan for the Respondents. The Judgment of the Court was delivered by PG NO 1062 DUTT, J. This appeal by special leave is directed against the judgment of the Division Bench of the Bombay High Court dismissing the appeal preferred by the appellants against the judgment of a Single Judge of the High Court dismissing the writ petition of the petitioners whereby they challenged the order dated January 5 1982 of the respondent No. 1 the Central Board of Direct Taxes rejecting the application of the appellant-company under section 80-O of the Income Tax Act, 1961, hereinafter referred to as the Act. By two agreements one dated April 5 1980 and the other dated August 14,1980 entered into between the appellant- companypany and Toyo Engineering India Ltd. for short Toyo India . the appellant-company agreed to render technical services in respect of Iraqi Storage Terminal Project Installations in companysideration of payment to it by way of fees payable under the said agreements. In the said agreement dated April 5,1980 it is stated inter alia that Toyo India has been engaged by Toyo Engineering Corporation for short TEC , a Company organised and existing under the laws of Japan having its registered office at Tokyo, Japan for the Project of Storage Terminal of State Organisation for Oil Project. a public Organisation organised and existing under the law of Iraq. Toyo India has in its turn engage the appellant-company to perform certain companystruction an6 related services by the appellant-company of the project work as set out in the said agreement. The appellant-Company by its letter dated October 23, 1980 requested the respondent No. 1, the Central Board of Direct Taxes, for the approval of the said agreements under section 80-O of the Act. The respondent No. 1 after giving the appellants a hearing, by its order dated January 5, 1982, refused to approve the said agreements for purposes of section 80-O of the Act inasmuch as in the view of the respondent No. 1, the essential companyditions laid down in section 80-O were number satisfied. The respondent No. 1 in its said order pointed out inter alia that according to the said agreements, the companytract price was received by the appellant-company from Toyo India, an Indian Company. In other words, income by way of royalty, companymission, fees, etc. had number been received by the appellant-company from the Government of a foreign State or a foreign enterprise, and that the agreements had been entered into by the appellant- companypany with Toyo India, and Indian companypany, and number with a foreign State or a foreign enterprise. Further, it was stated by the respondent No. 1 that as there was numberprivate of companytract between the appellant-company and the foreign enterprise, it companyld number be said that the income had been PG NO 1063 received by the appellant-Company in companysideration of the use outside india of patents inventions etc. made available or provided or agreed to be made available or provided to a Government of a foreign State or to a foreign enterprise or in companysideration of technical services rendered or agreed to be rendered outside India to such Government or enterprise by the appellant-company. Being aggrieved by the said order dated January 5 1982 of the respondent No. 1 refusing to approve the said two agreements the appellants filed a writ petition before the Bombay High Court challenging the said order. A learned Single Judge of the Bombay High Court by his judgment dated June 23, 1986 dismissed the writ petition on the ground inter alia that the payment was number received by the appellant-company from the Government of a foreign State or a foreign enterprise and, as such, it was number entitled to any relief under section 80-O of the Act. On appeal by the appellants against the judgment of the learned Single Judge the Division Bench of the High Court held that in order to attract the provision of section 80-O the payment must be received by an Indian companypany from the Government of a foreign State or a foreign enterprise. and that the words foreign enterprise must have the companyour from the words Government of a foreign State and must be read to mean an enterprise of a foreign national or a foreign ownership. Further the words foreign enterprise companyld number he held to apply to an establishment or undertaking or branch or unit of an Indian companypany in a foreign companyntry. Such establishment, undertaking, branch or unit might well be an enterprise, but number a foreign enterprise within the meaning of the said words. In that of the matter, the Division Bench of the High Court as stated already, upheld the judgment of the learned Single Judge and dismissed the appeal preferred by the appellants. Hence this appeal by special leave. At this stage we may refer to section 80-O of the Act as it stood during the assessment year 1980-81 which is the relevant period for this appeal. Section 80-O provides as follows 80-O, Deduction in respect of royalties, etc. from certain foreign enterprises.-Where the gross total income of an assessee, being an Indian companypany, includes any income by way of royalty, companymission, fees or any similar payment received by the assessee from the Government of a foreign State or a foreign enterprises in companysideration for the use PG NO 1064 outside India of any patent invention model design secret formula or process. or similar property right or information companycerning industrial companymercial or scientific knowledge experience or skill made available or provided or agreed to be made available or provided to such Government or enterprise by the assessee or in companysideration of technical services rendered or agreed to be rendered out-side India to such Government or enterprise by the assessee under an agreement approved by the Board in this behalf and such income is received in companyvertible foreign exchange in India or having been received in companyvertible foreign exchange outside India or having been companyverted into companyvertible foreign exchange outside India is brought into India by or on behalf of the assessee in accordance with any law for the time being in force for regulating payments and dealings in foreign exchange there shall be allowed in accordance with and subject to the provisions of this section a deduction of the whole of the income so received in or brought into India in companyputing the total income of the assessee Provided that the application for the approval of the agreement referred to in this sub-section is made to the Board before the 1st day of October of the assessment year in relation to which the approval is first sought Provided further that approval of the Board shall number be necessary in the case of any such agreement which has been approved for the purposes of the deduction under this section by the Central Government before the Ist day of April 1972 and every application for such approval of any such agreement pending with the Central Government immediately before that day shall stand transferred to the Board for disposal. The following principal companyditions must he fulfilled so as to attract the provision of section 80-O The assessee must be an Indian companypany. The income by way of royalty companymission fees etc. must be received by the assessee from the Government of a foreign State or a foreign enterprise. PG NO 1065 The companysideration shall be for the use outside India of any patent invention model design etc. made available or provided to such Government or enterprise by the assessee or technical services rendered or agreed to be rendered outside India to such Government or enterprise by the assessee. The agreement must be approved by the Board. The income received by the assessee shall be in companyvertible foreign exchange. The deduction shall be in respect of the whole of such income received in or brought into India. One of the principal points that is involved in this appeal relates to the interpretation of the expression foreign enterprise. The respondent No. 1 refused to approve the agreements entered into by the appellants with Toyo India principally on the ground that Toyo India is number a foreign enterprise. According to the respondent No. 1 Toyo India is an Indian Company and cannot be regarded a foreign enterprise within the meaning of section 80-O. The learned Single Judge and the Division Bench of the High Court have also taken the same view and upheld the order of the respondent No. 1 refusing to approve the agreements. It is number disputed that Toyo India has been engaged by TEC. The latter Company is admittedly a foreign Company organised and established by the laws of Japan for the Project of Storage Terminal of State Organisation for Oil Project. By the said agreements Toyo India engaged the appellant-company to perform certain companystruction and related services for the project work as set out in the agreements. It is urged by Mr. Rajagopalan learned Counsel appearing on behalf of the appellants that the High Court is wrong in its view that Toyo India is number a foreign enterprise. Counsel submits that the test of the expression foreign enterprise is the location of the enterprise which will clinch the issue. It is submitted that as the establishment of Toyo India with which we are companycerned is a branch unit or on undertaking in Iraq it should be regarded a foreign enterprise within the meaning of section 80-O of the Act. According to the learned Counsel the companycept of ownership for the purpose of deciding whether an enterprise is a foreign enterprise or number should number be introduced in section 80-O and if any enterprise satisfied the test of location or in other words if an enterprise is situate in a PG NO 1066 foreign companyntry it should be held to be a foreign enterprise within the meaning of section 80-O. On the other hand Dr. Gauri Shankar learned Counsel appearing on behalf of the respondents submits that the plain meaning of the words foreign enterprise is an enterprise having a foreign nationality. According to the learned Counsel a foreign enterprise means an enterprise created or established in a foreign companyntry under the law of that companyntry. If an Indian companypany opens an enterprise in a foreign companyntry but does number get the enterprise registered under the law of that companyntry it will in the view of the learned Counsel remain an Indian enterprise and number a foreign enterprise. Before companysidering the companytentions of the learned Counsel for both parties relating to the interpretation of the expression foreign enterprise occurring in section 80-O we may refer to the legislative background. Under section 85-C of the act which was introduced by the Finance Act 1966 and which came into force w1th effect from April 1, 1961. Indian companypanies companyld obtain companycession of the extent of 25 per cent of its income if the foreign exchange was received from a companypany which was neither an Indian companypany number a domestic companypany. Section 80-O was inserted in the Act by the Finance Act 2 of 1967 and it came into force with effect from April 1, 1968. Section 80-O as it stood on that day provided that the payer should be a foreign companypany and the relief was enlarged to 60 per cent. Finance Act 2 of 1971 made an amendment in section 80-O changing the prayer from foreign companypany to Government of a foreign State or a foreign enterprise and enlarging the relief to 100 per cent. Even up to this day numberchange has been made in respect of the payer. It thus. appears from the legislative background or the legislative changes that from foreign companypany it has been changed into Government of a foreign State or a foreign enterprise. It is apparent that the expression foreign enterprise has been substituted for foreign companypany while the words Government of a foreign Statehave been inserted. There can be numberdoubt that the expression foreign enterprise is a wider term than foreign companypany Foreign enterprise will include within it also a foreign companypany Now a foreign companypany is a companypany incorporated under the called a foreign companypany. Thus in the case of a foreign enterprise which is a foreign companypany such companypany must be incorporated in accordance with the law of the foreign PG NO 1067 companyntry in question. Keeping this in view the question that arises is whether a branch unit or establishment of an Indian companypany doing business in a foreign companyntry can be said to be a foreign enterprise. In our view it is difficult to regard such branch unit or establishment a foreign enterprise within the meaning of section 80-O of the Act. The interpretation of a term should be such as to be companysistent with the things or objects that are included within it. In other words the meaning of the expression cannot be different for different objects included in the expression. If an Indian companypany having a branch unit or establishment in a foreign companyntry cannot be regarded a foreign companypany then for the same reason a branch unit or establishment of an Indian companypany situate in a foreign companyntry or doing business in such foreign companyntry cannot be included within the meaning of the expression foreign enterprise. The test of location as companytended by the learned Counsel appearing on behalf of the appellants is numberdoubt one of the tests for deciding whether an enterprise is a foreign enterprise or number within the meaning of section 80-O of the Act but that is number the only test. In order that an enterprise can be called a foreign enterprise for the purpose of section 80-O there can be numberdoubt that it has to be located in a foreign companyntry. The High Court has decided the issue on the ground of foreign ownership. Undoubtedly. ownership is also a criterion for deciding whether an enterprise is a foreign enterprise or number. But again that is number the sole criterion or test and as has been observed before location of an enterprise is also a test for deciding whether an enterprise is a foreign enterprise or number. Now we may companysider the companytention of Dr.Gauri Shankar that a foreign enterprise means an enterprise created and registered under the foreign law. The question of creation of an enterprise under the foreign law necessarily companyes in as the expression foreign enterpriseincludes within it a foreign companypany. Thus companysidering the above aspects and to give the expression foreign enterprise as used in section 80-O a companysistent and reasonable meaning we are of the view that a foreign enterprises an enterprise situate in a foreign companyntry having been created or registered in accordance with the law of such companyntry. It will number be profitable for us to refer to a decision of this Court in R. Arora v . State of Uttar Pradesh, 19646 SCR 784, where it has been held that a literal interpretation is number always the only interpretation of a provision in a statute and the Court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind PG NO 1068 the words actually used which companytrol the literal meaning of the words used. The expression foreign enterprise in section 80-O has been placed after the words the Government of a foreign State. The view which we take as to the interpretation of the expression foreign enterprise finds support from the setting in which the expression has been placed and the circumstances in which the law came to be passed. It is however urged by Mr. Rajagopalan learned Counsel for the appellants that it may be that a foreign enterprise can be defined in the manner we have done at the same time the definition of the expression on the basis of the test of location cannot altogether be ruled out. In any event it is possible to define the expression foreign C enterprise as an enterprise located outside India. Counsel submits that when two interpretations are possible to be made the interpretation which is favourable to the assessee should be adopted. In support of that companytention learned Counsel has placed reliance upon a few decisions of this Court in Commissioner of Income Tax. Lucknow v. D Madho Pd. Jalia, 1976 105 ITR 179 Commissioner of income Tax v. Vegetable Products Ltd., 1973 88 ITR 192 and Commissioner of Income Tax, Punjab v. Kulu Valley Transport Co. P. Ltd., 1970 77 ITR 518. The above principle of law is well established and there is numberdoubt that. But the question is whether two views are possible to he taken on the interpretation of the expression foreign enterprise. In our opinion the expression foreign enterprise admits of only one interpretation. The interpretation which the learned Counsel for the appellants wants to put on the expression will number be full and companyplete and will render the meaning of the expression inconsistent with the objects included within it having regard to the change effected by the Legislature from foreign companypany to the present expression foreign enterprise as has been already numbericed. We are therefore-unable to accept the interpretation of the expression as submitted on behalf of the appellants. We are also unable to accept the companytention of the appellants that as the provision of section 80-O is an exemption provision, it should be companystrued liberally and upon such liberal companystruction. it should be held that Toyo India is a foreign enterprise. It is true that an exemption provision should be liberally companystrued but this does number mean that such liberal companystruction should be made doing violence to the plain meaning of such exemption provision. Liberal companystruction will be made whenever it is possible to PG NO 1069 be made without impairing the legislative requirement and the spirit of the provision. In our opinion to companystrue foreign enterprise in section 80-O as including within it an Indian companypany or a branch or unit of such companypany simply because it is located in a foreign companyntry would be against the plain meaning of the term and the legislative intent. We may number Consider another argument of the appellants based on the objective of the provision of section 80-O. It is submitted by the learned Counsel for the appellants that the objectives of section 80-O are to encourage Indian companypanies to export their technical know-how and thereby augment the foreign exchange resources of the companyntry. Counsel submits that the main objective of the section is to augment the foreign exchange resources of the companyntry and that the appellant-Company having earned foreign exchange it should be held that the requirement of the section is satisfied and accordingly the appellant- Company is entitled to deduction of Income Tax. On the other hand Dr. Gauri Shankar points out that the main objective of section 80-O is number the earning of foreign exchange. According to him the principal purpose for which the deduction is allowed to an assessee is that companytained in the speech of the Finance Minister on the floor of Parliament at the time of introduction of section 85-C into the Act. A companyy of the speech has been handed over to us and has also been supplied to the learned Counsel for the appellants. In his speech. the Honble Finance Minister stated inter alia that some fiscal encouragement needs to be given to our industries to encourage them to provide technical know-now and technical services to newly developing companyntries. In view of the speech it is urged by Dr. Gauri Shankar that the principal objective of section 80-O is to supply technical know-how and render technical services by Indian companypanies to newly developing companyntries. Counsel submits that it will he wrong to say that the principal objective of section 80-O is to augment the foreign exchange resources of the companyntry. Although there is numberindication in section 80-O regarding the supply of technical know-how or rendering technical services to newly developing companyntries yet it may be reasonable to infer from the said speech of the Finance Minister that at the time section 85-C was introduced in the Act one of the objectives was to supply technical know-how and render technical services to newly developing companyntries. Foreign exchanges can be earned by various other modes but that will number in all cases entitle the assessee to a deduction of Income Tax. Section 80-O. as it stood during the relevant period with which we are companycerned grants cent PG NO 1070 percent deduction of tax. In the companytext of such deduction of tax it will number be unreasonable to presume that the principal objective of section 80-O is to supply technical know-how or render technical services to developing companyntries. In the circumstances the companytention of the appellants that as the appellant-Company has fulfilled the principal object of section 80-O by earning foreign exchange the respondent No. I should have approved the agreements for the purpose of section 80-O cannot he accepted. It is however submitted on behalf of the appellants that apart from the question as to what is the principal objective of section the appellant-Company has fulfilled both the objectives namely it has supplied technical know- how to a foreign enterprise through an Indian companypany and that it has also earned foreign exchange. it is urged on behalf of the appellants that although the appellant-Company may number have directly supplied technical know-how to or directly received fees companymission etc. from the foreign enterprise in companyvertible foreign exchange in effect the appellant-Company having satisfied the objectives of section 80-O indirectly it is entitled to a deduction of Income Tax. In support of this companytention much reliance has been placed two Single Bench decisions of the Bombay High Court which will be referred to presently. In Gannon Dunkerley and Co. Ltd. v. Central Board of Direct Taxes, 1986 159 ITR 162, the facts are more or less similar to those in the present case and it has been held that the main companyditions imposed by section 80-O has been companyplied with by the petitioner- Company and the Central Board of Direct Taxes should have approved the agreement. The same view has been taken in the other Single Bench decision of the Bombay High Court in Indian Hume Pipe Co. Ltd. v . Central Board of Direct Taxes, 1987 165 ITR 537. Both the above decisions have been companysidered by the Division Bench in the impugned judgment and the Division Bench companyld number agree with the view expressed in those decisions. Mr. Rajagopalan has pressed us to hold on the basis on the said Single Bench decisions of the Bombay High Court that the objectives of the section having been fulfilled, the agreements should have been approved by the Central Board of Direct Taxes. Attractive though the argument is, we regret, we are unable to accept the same. It is true that viewed in the light of the submissions made on behalf of the appellants, the objectives of the section are to some extent fulfilled, but we cannot, at the same time, ignore the plain language of the section. Section 80-O unequivocally provides that the income by way of royalty, companymission, fees etc. shall be received by the assessee from PG NO 1071 the Government of a foreign State or a foreign enterprise and indeed that is one of the principal companyditions for the application of the section. The assessee has to fulfil that companydition before he can claim any deduction of Income Tax or approval of an agreement. The fulfilment of the objectives of a provision of a statute without fulfiling the companydition laid down in plain and clear language will number enable one to have the benefit of the section. In our opinion number only the objectives of a provision of a statute have to be fulfilled but also the companyditions for the applicability of the provision have also to be fulfilled. The fulfilment of companyditions of a provision of an Act in most cases will also be fulfilment of the objectives of the provision. But the companyverse may number be true. In other words the fulfilment of the objectives may number satisfy the companyditions required to be fulfilled by the provision. In the instant case the appellant-Company received its income by way of royalty companymission fees or any similar payment number from the Government of a foreign State or a foreign enterprise but from an Indian companypany. The appellant-Company has therefore failed to fulfil the principal companydition of section 80-O of the Act. In the circumstances it is difficult to accept the companytention of the appellants that as they have indirectly fulfilled the objectives of the section the Central Board of Direct Taxes was number justified in number approving the agreements. In the impugned judgment the High Court has held that section 80-O does number require that the agreement should be made with the Government of a foreign State or a foreign enterprise. We are unable to accept this view of the High Court. Section 80-O refers to three parties namely. Government of a foreign State. foreign enterprise and the assessee. It is clear from section 80-O that the agreement must be between the assessee on the one hand and the Government of a foreign State or a foreign enterprise on the other. When section 80-O speaks of the supply of know-how by the assessee to a Government of a foreign State or a foreign enterprise and the receipt of income by way of royalty companymission etc. from the Government of a foreign State or a foreign enterprise it is unreasonable to think that the agreement under which the technical know-how shall be supplied and the income shall be received by the assessee in companyvertible foreign exchange may number be with the Government of a foreign State or a foreign enterprise but with some other party. It is manifestly clear from the provision of section 80-O that the agreement shall be entered into by and between the assessee and the Government of a foreign State or a foreign enterprise. In the instant case numbersuch agreement has been entered into by the appellant-Company with the Government of a PG NO 1072 foreign State or a foreign enterprise. In that respect also the appellant-Company does number fulfil another companydition of section 80-O which is also very material. The agreements which have number been approved by the Central Board of Direct Taxes have been as already numbericed entered into between the appellant-Company and Toyo India which is number a foreign enterprise but an Indian Company. In view of the facts stated above the Central Board of Direct Taxes was justified in number approving the agreements in question. Lastly it is argued on behalf of the appellants that section 80-O should be companystrued as permitting canalisation and if so companystrued the appellant-Company will be entitled to the benefit of the section. On the other hand it is the companytention of Dr. Gauri Shankar that in view of the specific mandate of section 80-O that the income of the assessee shall be directly received from the foreign enterprise the question of canalisation does number arise. In other words it is submitted that canalisation is number companytemplate.1 by section 80-O. In reply to the companytention of Dr. Gauri Shankar Mr. Rajagopalan submits that it is a lacuna on the part of the Legislature in number providing for canalisation in fulfilment of the objectives referred to above. In support of his companytention. much reliance has been placed by him on the observation of Lord Denning in the decision in Seaford Court Estates Ltd. v . Asher 1949 2 K.B. 481. In that case Lord Denning observed as follows A judge believing himself to he fettered by the supposed rule that he must look to the language and numberhing else laments that the draftsmen have number provided for this or that or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the companystructive task of finding the intention of Parliament and he must do this number only from language of the statute but also from a companysideration of the social companyditions which gave rise to it and of the mischief which it was passed to remedy. and then he must supplement the written word so as to give force and life to the intention of the legislature. The above observation of Lord Denning does number in our opinion help the appellants. The entire observation is based on a defect appearing in the provision of a statute. In our PG NO 1073 view there is numberdefect in the provision of section 80-O. It may be that the Legislature has number provided for canalisation but that cannot be said to he a lacuna or a defect in the provision. Whether canalisation should be permitted or number is absolutely a matter for the Legislature. It is number incumbent on the Legislature to provide for canalisation although it has been frankly companyceded by Dr. Gauri Shankar that canalisation is desirable and a reasonable one. In the circumstances in view of the plain language of the section we do number think that we can companystrue the section as providing canalisation that is to say income by way of royalty companymission etc. need number be received directly from the Government of a foreign State or a foreign enterprise but through another Indian companypany. This is number the intention of the Legislature. For the reasons aforesaid the appeal is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 131 of 1988. From the Judgment and order dated 13.3.1986 of the High Court of Karnataka in C.R.P. No. 1821 of 1984. S. Nambiar, R.C. Kaushik and A.K. Sharma for the Appelant. S. Khanduja and Y.P. Dhingra for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. Leave granted. The limited question falling for our deterrnination in this appeal by special leave is whether a suit for damages already instituted against a companynsel has abated or number companysequent on the death of the plaintiff. G We may number scan the facts. Pursuant to the High Court of Karnataka companyfirming an order of eviction passed against him in respect of his business premises, a tenant by name Mr. Sequeira wanted to prefer an appeal to the Supreme Court. For that purpose he met the appellant, who is an advocate practising in the Supreme Court, H on 14.6.197 1 at Mangalore during the latters visit to that place and engaged him to file the appeal. The special leave petition came up for hearing on 22.11.1971 and was dismissed as withdrawn. Mr. Sequeira then filed a suit S. No. 255 of 1972 in the Court of the District Munsif, Mangalore against the appellant for damages and companypensation. He alleged in the plaint that the appellant had been negligent in rendering professional services and had misconducted himself by filing the appeal after companysiderable delay and giving misleading information about the filing of the appeal and furthermore in withdrawing the appeal instead of canvassing for its admission. He further alleged that as a companysequence of the appeal being dismissed, he came to be evicted from his business premises and thereby he had incurred loss of income as he had been unable to secure an alternate place for running his business besides suffering mental agony, worry and loss of reputation. The plaintiff, therefore, claimed that the appellant was liable to companypensate him in a sum of Rs.20,000 towards the loss sustained by him but he was however companytent to restrict the amount to Rs.4,500. In addition he claimed a sum of Rs. 1,500 under three heads of Rs.500 each viz., I refund of Rs.500 paid towards companyrt fee and miscellaneous expenses, 2 reimbursement of Rs.500 expended for engaging another advocate to obtain a certified companyy of the order of the Supreme Court in the special leave petition and 3 companypensation towards wrongful retention of the case file by the appellant and reimbursement of expenses incurred for telephone and postal charges. Thus in all the suit was laid against the appellant for a sum of Rs.6,000 by way of damages and companypensation besides companyts etc. The appellant entered appearance in the suit and filed a written statement refuting the charges of negligence and mis-conduct levelled against him by the plaintiff and also disputing the plaintiffs right to seek damages or reimbursement of amounts from him under any of the heads set out in the plaint. During the pendency of the suit the plaintiff died and his legal representatives, who are the respondents herein, filed a petition under order XXII Rule 3 1 of the Code of Civil Procedure seeking their substitution in the suit for prosecuting the suit further. The appellant opposed the application and companytended that as the suit was one for damages for personal injuries alleged to have been sustained by the plaintiff, the suit abated on his death as per the maxim Actio Personalis cum moritur persona. The District Munsif upheld the objection and dismissed the suit as having abated but the High Court held otherwise and declared the legal representatives to be entitled to get impleaded and companytinue the suit. The learned single judge who allowed the Revision has taken the view that Krishna Behari Sen v. Corporation of Calcutta, ILR 31 Calcutta, 993, sets out the companyrect ratio and hence he was following it in preference to the ratio laid in Rustomji Dorabji v. W.H. Nurse, ILR 44 Madras, 357 and Motilal Satyanarayan and Anr. v. Harnarain Premsukh Anr., AIR 1923 Bombay 408. The said order of the learned single judge is urlder challenge in this appeal. Even at the threshold of the judgment we may say that the ratio followed by the High Court is number a companyrect one. Section 306 of the Indian Succession Act, 1925 which companyresponds to Section 89 of the Probate and Administration Act, 1881, sets out the rights of Executors and Administrators to companytinue actions of or against a deceased person. Section 306 which is almost a re-production of Section 89 in the earlier Act reads as follows Demands and rights of action of or against deceased survive to and against executor or administrator. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries number causing the death of the party and except also cases where, after the death of the party, the relief sought companyld number be enjoyed or if granted it would be nugatory . In so far as the rights of a legal representative to proceed with a suit filed by a deceased plaintiff is companycerned, order XXII Rules I and 3 1 govern the matter. They read as under The death of a plaintiff or defendant shall number cause the suit to abate if the right to sue survives. 3. 1 Where one of two or more plaintiffs dies and the right to sue does number survive to the surviving plaintiff or plaintiffs alone, or sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. These provisions of law have companye up for companysideration in a number of cases before several High Courts. The companytroversy in all the cases either under Section 89 of the Probate and Administration Act 1881 or under Section 306 of the Indian Succession Act 1925 centred round the meaning to be given to the words other personal injuries number causing the death of the party. Barring the Calcutta High Court and that too in one reported case only and the Rangoon High Court in one decision, other High Courts have uniformly taken the view that the words personal injuries do number mean injuries to the body alone but all injuries to a person other than those which cause death and that the relevant words must be read ejusdem generis with the words defamation and assault and number with the word assault alone. It would suffice for our purpose if we set out the reasons given in the Full Bench decision of the Madras High Court in Rustomji Dorabji v. H. Nurse, supra and merely give the citations of the other decisions where the same view has been taken. In Rustomji Dorabji v. W.H. Nurse, Coutts Trotter, J. speaking for himself and Ayling, J. set out the law as follows. We are therefore driven to the companyclusion that the Act must be supposed to have envisaged a logically companyerent class of causes of action, and that result can only be achieved by companystruing personal injuries as meaning number injuries to the body merely, but injuries to the person in Blackstones sense, other than those which either cause death or tangible affect the estate of the deceased injured person or cause an accretion to the estate of the deceased wrong doer. In effect, we think that the words which we have to companystrue are ejusdem generis number merely with the last preceding word assault, but with the two preceding words defamation and assault. Emphasis supplied. Kumaraswamy Sastri, J., the third judge in the Full Bench, in his companycurring judgment gave his reasons as under If the words were simply all personal injuries number causing the death of the party and omitted defamation or assault, it may be argued that personal meant only physical and that causes of action for defamation and other similar injuries survived. The legislature took two types of personal injuries, one physical and the other number, and used them by way of illustration of what it meant to exclude. In this view, the words other personal injuries number causing the death of the party must be read with defamation and assault. There has been a companyflict of authority on the question referred. In Punjab Singh v. Ramautar Singh, it was held by the Patna High Court that the words other personal injuries number causing the death of the party in Section 89 of the Act are ejusdem generis number only with assault but also with defamation and include malicious prosecution. The same view has been held by the Madras High Court in Gandhiji Mareppa v. Firm of Marwadi Vannajee, 2 and Marwadi Mothiram v. Samnaji, 3 A companytrary view was taken in Krishna Behari Sen v. The Corporation of Calcutta, 4 where the learned Judges differed from Justice Henderson, the trial Judge, and held that to use the words other personal injuries number resulting in death in companynexion with an action for defamation or malicious prosecution would be straining the language used by the legislature and placing on it an unnatural and forced companystruction. In Punjab Singh v. Ramautar Singh, I Das, J., who was a member of the Calcutta Bar for several years observes that in his experience the case has never been followed subsequently in the Calcutta High Court. I would follow Punjab Singh v. Ramautar Singh, I and Marwadi Mothiram v. Samnaji, 2 and hold that a suit for damages for malicious prosecution abates. Not only has this view been companysistently followed by the Madras High Court in subsequent decisions but the same view has been taken by several other High Courts as may be seen from the following citations Madras High Court, Palaniappa Chettiar v. Rajah of Ramnad, ILR 49 Madras 208 Irulappa v. Madhava, AIR 1951 Madras 733 Arnuchalam v. Subramanian, AIR 1958 Madras 142 Bombay High Court, Gopal v. Ram Chandra, ILR XXVI Bombay 597 Motilal v. Harnarayan, supra Nagpur High Court, Maniramlala v. Mt. Chalti Bai Anr., ILR 1938 Nagpur 280 Baboo v. Subanshi, ILR 1942 Nagpur 650 Baboolal v. Ramlal, AIR 1952 Nagpur 408 Patna High Court, Punjab Singh v. Ramautar Singh, AIR 1920 Patna 841 Jogindra Kaur v. Jagdish Singh, AIR 1964 Patna 548 Madhya Pradesh High Court, Ratanlal v. Baboolal, AIR 1960 Madhya Pradesh 200 Andhra Pradesh High Court, G. Jayaprakash v. State, AIR 1977 Andhra Pradesh 20. As against the preponderant view taken by several High Courts, a Full Bench of the Calcutta High Court alone took a companytrary view in Krishna Behari Sen v. Corporation of Calcutta, supra . Maclean, C.J. speaking for the Bench held that the words. personal injuries number causing the death of the party if accorded their natural and ordinary meaning appear to refer to physical injuries to the person which do number cause death. As has been pointed out by Das, J. in Punjab Singh v. Ramautar Singh, supra the ratio in Krishna Behari Sens, case had number been followed subsequently by the Calcutta High Court itself in any other case. The view taken by the Calcutta High Court found solitary acceptance only in a decision of the Rangoon High Court in D.K. Cassim Sons. Sara Bibi, ILR XIII Rangoon 385. It is therefore clear that the companytrary view taken by the Calcutta High Court is against the weight of judicial pronouncements by other High Courts. In a slightly different companytext the matter came to be companysidered by this Court in Melepurath Sankunni Ezhuthassan Thekittil Geopalankutty Nair, AIR 1986 SC 411. A plaintiffs suit for damages for defamation was decreed by the Appellate Court but dismissed by the High Court in Second Appeal. There was an appeal to this Court by the plaintiff by special leave and during its pendency the plaintiff died. This Court declined to allow the legal representatives of the plaintiff to companye on record and prosecute the appeal on the ground that by reason of the dismissal of the suit by the High Court, the plaintiff stood relegated to his original position and, therefore, the proceedings abated on his death. The decision pointed out that the position would have been different if the plaintiff had a subsisting decree in his favour because then the cause of action would get merged in the decree and the decree would form part of the estate of the deceased which his legal representatives are entitled to uphold. The maxim actio personalis cum moritur persona has been applied number only to those cases where a plaintiff dies during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff dies during the pendency of an appeal to the Appellate Court, be it the First Appellate Court or the Second Appellate Court against the dismissal of the suit by the Trial Court and or the First Appellate Court as the case may be. This is on the footing that by reason of the dismissal of the suit by the Trial Court or the First Appellate Court as the case may be, the plaintiff stands relegated to his original position before the Trial Court. Vide the decisions in Punjab Singh Ramautar Singh, supra , Irulappa v. Madhva, supra , Maniramlala v. Mt. Chalti Bai Anr. supra , Baboolal v. Ram Lal, supra and Melepurath Sankunni Ezhuthassan v. Thekittil Gopalankutty Nair, supra . In Palaniappa Chettiar Rajah of Ramnad supra , and Motilal v. Harnarayan, supra it was held that a suit or an action which has abated cannot be companytinued thereafter even for the limited purpose of recovering the companyts suffered by the injured party. The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong doer vide Rustomji Dorabji v. W.H. Nurse, supra and Ratanlal v. Baboolal, supra as well as in those cases where a suit for damages for defamaton, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiffs estate and the appeal from the decree by the defendant become a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend vide Gopal v. Ramchandra, supra and Melepurath Sankunni Thekittil, supra . Though Section 306 speaks only of executors and administrators and order XXII Rule 3 Civil Procedure Code sets out the rights of legal representatives to companytinue the proceedings instituted earlier by a deceased plaintiff if the right to sue survives, the companyrts have taken the view that the legal representatives stand on par with executors and administrators regarding their right to seek impleadment in order to companytinue the suit. We may in this companynection only quote the following passage occurring in Melepurath Sankunnis case supra . Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also. Thus it may be seen that there is unanimity of view among many High Courts in the companyntry regarding the interpretation to be given to the words other personal injuries number causing the death of the party occurring in Section 306 of the Indian Succession Act and that the companytrary view taken by the Calcutta Rangoon High Courts in the solitary cases referred to above has number companymended itself for acceptance to any of the other High Courts. The preponderant view taken by several High Courts has found acceptance with this Court in its decision in Melepurath Sankunni Ezhuthassans case. It is on account of these factors we have expressed our disapproval at the outset itself of the view taken by the High Court in this case. What number falls for companysideration is whether the suit filed by the plaintiff was founded on torts or on companytract. Mr. Kaushik, learned companynsel for the appellant, in all fairness, did number companytend that the words other personal injuries must be read narrowly-i.e., ejusdem generis only with assault and other physical injuries number resulting in the death of the party. His argument however was that the plaintiffs suit is wholly founded on torts because it related to the damages sought for by the plaintiff for alleged loss of reputation, mental agony, worry etc. and hence the suit is based only on the personal injuries of the plaintiff and it inevitably abated on his death. On the other hand, Mr. Khanduja, companynsel for the respondents, companytended that the suit is number really founded on torts but is founded on companytract and there had been a breach of the companyditions of engagement by the appeal being withdrawn companytrary to instructions, number to speak of the delay in the filing of the appeal. By reason of the breach of the companyditions of engagenment, the plaintiff had been evicted and put to loss and, therefore, the suit for damages really pertained to the loss suffered by the estate of the plaintiff and the said loss companyld well be claimed by the legal representatives after the death of the plaintiff. It was further urged by him that the suit amount companysisted of claims under different heads and that while Rs.4,500 had been claimed by way of companypensation for the monetary loss sustained by the plaintiffs estate, the claims relating to Rs.1,500 under three different heads were also amounts due to the estate as expenditure suffered by it and hence it was number open to the appellant to companytend that the suit was only for personal injuries sustained by the plaintiff and therefore it abated on his death. In view of the fact that this aspect of the matter has number been companysidered by the Trial Court or the High Court, we do number think it proper to express any opinion one way or the other as to whether the suit cause of action is founded on torts or on companytract. Since a companyy of the plaint has number been furnished by either party we can only refer to the summary of the plaint companytained in the order of the District Munsif. The relevant portion reads as follows. A at a later stage, he filed the petition and withdrew it the Special Leave Petition was dismissed as withdrawn defendant did number inform the plaintiff well in time, plaintiff got suspicion over the attitude of the defendant, he engaged another companynsel in the Supreme Court and obtained certified companyies of the petitioners application and order of the Supreme Court on the application filed by the defendant even after several requests, defendant has number returned the file defendant incurred Rs.500 to obtain certified companyies on account of the misconduct of the defendant, plaintiff has suffered untold mental worry, agony, and loss of reputation plaintiff was evicted from the shop premises situated at Hampankatta he has number been able to secure a similar place for companytinuing his business the defendant is liable to pay the plaintiff an amount of Rs.500 being the loss incurred by him to engage the service of another advocate to obtain the certified companyies of the petition and application filed by the defendant in the Supreme Court that apart the defendant is liable to companypensate the plaintiff to the extent of another sum of Rs.500 as the defendant has number renurned the records that were entrusted to the defendant by the plaintiff and for the charges incurred by the plaintiff in sending telegrams, or companyrespondences or for trunk phone calls for want of suitable place for companytinuing the business of the plaintiff, the plaintiff has suffered damage or loss of over Rs.20,000 but the plaintiff restricts the claim to Rs.4,500 in this behalf. The plaintiff is entitled to be companypensated by the defendant to the extent of Rs.6,000 as stated above, viz. Rs.500, Rs.500, Rs.500, Rs.4,500 for loss of damage sustained by the plaintiff and the defendant is liable to companypensate the plaintiff in this respect as he has number done his duty which he owed towards the plaintiff underlining by us Having regard to the nature of the claim we are number able to companyprehend how without any enquiry and recording of evidence the Trial Court and the High Court have proceeded on the basis that the suit claim is based only on tortious liability though the two Courts have reached different companyclusions about the abatement of the suit. The learned companynsel for the respondent placed reliance upon the summary of the averments in the plaint set out above and argued that the plaintiff had suffered loss of over Rs.20,000 due to the closure of the business and hence the restricted claim of Rs.4,500 is really towards loss suffered by the estate and number a claim made on the basis of the loss of reputation, mental agony, worry etc. suffered by the plaintiff. He further stated that the claim of Rs.1,500 under three heads of Rs.500 each also related to the loss suffered by the estate of the deceased and hence the suit has to proceed for the entire suit claim. Since numberdiscussion has been made and numberfinding has been rendered on this question and since we can number render any finding on the basis of the materials on record whether the suit is based on the personal injuries sustained by the plaintiff or upon the loss suffered by the estate, we think the proper companyrse would be to allow the judgment under appeal to stand even though we do number approve the reasoning of the High Court and dismiss the appeal. We leave the matter open for the Trial Court to decide whether the suit is founded entirely on torts or on companytract or partly on torts and partly on companytract and deal with the matter according to law. If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on companytract then such part of the claim as relates to torts would stand abated and the other part would survive. If the suit claim is founded entirely on companytract then the suit has to proceed to trial in its entirety and be adjudicated upon. Before companycluding the judgment, it would number be out of place for us to refer to some English decisions and to the relevant provisions in the Legal Practitioners Act, 1879 and the Legal Practitioners Fees Act, 1926 regarding the liability of companynsel to pay damages to their clients for breach of duty or negligence. In England a distinction was made between barristers and other professional men and for a long time it was in usage that a barrister companyld number be sued by a client for negligence or breach of duty because a barristers services were deemed to be gratuitous and therefore he companyld number sue or even make a companytract for his fees with a client or with a solicitor who represented the client and companyrespondingly a barrister companyld number be sued by a client for breach of duty or negligence. The position is summarised by Prof. Winfield in all the editions of his book on Torts from 1937 onwards as under The reason for this exemption is that in theory his services are gratitous, and although that, by itself, is number a sufficient ground for preventing a legal duty from arising in other - circumstances, the rule with regard to a barrister is inveterate, whatever be its justification. The assumption, however, suffered a setback when the House of Lords enunciated a general principle in Hedley Byrne Co. Ltd. v. Heller Partners, 1963 2 All E.R. The principle has been enunciated in the speech of Lord Morris of Borth-Y-Gest as under If someone possessed of a special skill undertakes, quite irrespective of companytract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise. By reason of this decision, the Court of Appeals in Rondel v. W., 1966 3 All E.R. 657 and the House of Lords in Rondel v. Worsley, 19673 All E.R. 993 had to rest the immunity of a barrister from being sued for professional negligence in the companyduct of a cause on grounds of public policy. The facts in Rondels case were that he was charged for having caused grievous bodily harm to one Manning. He was number given legal aid but after the case had proceeded for sometime, he was afforded the facility of a Dock Brief and he chose a barrister by name, Mr. Worsley to act for him. The case eventually ended in companyviction and the companyviction was companyfirmed by the Appellate Court and Rondel underwent the sentence. Nearly six years later he issued a writ against Mr. Worsley claiming damages for alleged professional negligence in the companyduct of his duty. The writ was dismissed on the ground that an action against a barrister cannot be maintained on grounds of public policy for alleged negligence on his part in the companyduct of the case especially when the action would amount to seeking a review of the companyrectness of the companyviction awarded to Rondel in the earlier proceedings. In Heywood v. Wellers, 1976 1 All E.R. 300 the plaintiff was held entitled to recover damages from the defendant firm of solicitors for the mental distress which she had suffered as a result of the molestation suffered by the plaintiff companysequent on the solicitors negligent failure to enforce the injunction obtained against one Reginald Marrion. In that case, the plaintiff instructed a firm of solicitors to apply for an injunction to restrain one Reginald Marrion from molesting her. The solicitors obtained an interim injunction on 27th February but when the defendant again molested the plaintiff on 28th April in breach of the injunction, they failed to enforce the injunction by bringing the defendant before the Court. As a result of the failure to enforce the injunction, the plaintiff was again molested by Marrion on 25th May and on 8th November. She suffered mental distress in companysequence of the molestation companymitted on those dates. In an action brought by her against the firm of solicitors, it was held that she was entitled to recover damages as well as the companyts incurred by her from the firm of solicitors In Midland Bank Trust Co. Ltd. Anr. v. Hett, Stubbs Kemp, 1978 3 All E.R. 571 a firm of solicitors was sued for damages for their failure to register a formal agreement as a companysequence of which the plaintiff companyld, number enforce his option under the agreement to purchase the freehold reversion of a farm at a stated price within a period of ten years as the estate had been companyveyed to another. It was held that the solicitors were liable to the plaintiff in tort as they had failed to exercise due care and skill on which they knew the client would place reliance and because of the duty they owed to the client number to injure him by failing to do that which they had undertaken to do. Re Bells Indenture Ben Anr. v. Hickley ors., 1980 3 All . R. 425 is yet another case where a solicitor was held liable to replace the misappropriated money of his client as a companystructive trustee. What happened in that case was that money was paid into the firms client account in the name of express trustees. The express trustees misappropriated the money with the solicitors knowledge. It was held that the solicitor was liable to replace the money as a companystructive trustee. In India, the matter is governed by the Legal Practitioners Fees Act, 1926. In the Legal Practitioners Act, 1879 a legal practitioner has been defined as an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent. The preamble to the Legal Practitioners Fees Act, 1926 reads as follows An Act to define in certain cases the rights of legal practitioners to sue for their fees and their liability to be sued in respect of negligence in the discharge of their professional duties. Section 2 to 5 are important and hence they are extracted below Section 2 For the purposes of this Act, unless there is anything repugnant in the subject or companytext, a legal practitioner means a legal practitioner as defined in section 3 of the Legal Practitioners Act, 1879 And b a legal practitioner shall number be deemed to act if he A only pleads, or to agree to act if he agrees only to plead. Any legal practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and the fees to be paid for his professional services. Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if numbersuch fee has been settled, a fee companyputed in accordance with the law for the time being in force in regard to the companyputation of the companyts to be awarded to a party in respect of the fee of his legal practitioner. No legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the companyduct of his professional duties. reading of these sections would go to show that any legal practitioner who acts or agrees to act for any person may settle with the said person the terms of his engagement and the fee to be paid for his professional services that the legal practitioner will be entitled under law institute and maintain legal proceedings against his client for the recovery of any fee due to him under the agreement or as per the companyts taxed by the Court where there has been numberpre- settlement of the fee and that numberlegal practitioner who has acted or agreed to act shall merely by reason of his status as a legal practitioner be exempt from liability to be sued in respect of any loss or injury due to any negligence in the companyduct of his professional duties. Therefore, a legal practitioner cannot claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the companyduct of his professional duties merely by reason of his being a legal practitioner. As to whether Section 2 B will afford protection to a legal practitioner from being sued for negligence by a client if he only pleads or agrees to plead is a matter for judicial determination in an appropriate case if an occasion arises for it. For the present we are number expressing any opinion on the matter except to point out that there is a specific provision in the Legal Practitioners Fees Act setting out that legal Practitioners would also be liable for being sued by their clients if they have been negligent in the performance of their professional duties. The nature of the companytroversy in this appeal, as we have stated at the outset itself, does number pertain to these questions. In companyclusion, since we find that the question whether the suit has abated or number can be answered only after the nature of the suit is determined on the basis of the materials placed and the evidence adduced by the parties, the appeal has to be dismissed. The suit will stand restored to the file of Trial Court for disposal in accordance with law in the light of the guidelines given by us. Accordingly the appeal is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2206 of 1987. From the Judgment and order dated 4.2.1987 of the High Court of Punjab and Haryana in Civil Revisions No. 2371 of 1986. S. Sohal, R.K. Talwar and P.N. Puri for the Appellant. M. Sarin and R.C. Misra for the Respondent. The Judgment of the Court was delivered by RAY, J. This is an appeal by special leave against the judgment and order passed in Civil Revision No. 2371 of 1986 dismissing the revision petition and upholding the order of eviction of the tenant appellant from the house in question. The landlord, Kartar Singh filed an application in the companyrt of Rent Controller, Kapurthala under Section 13-A of the East Punjab Urban Rent Restriction Amendment Act, 1985, stating inter alia that Dr. D.N. Malhotra is a tenant in respect of his house No. 694-A within Kapurthala Municipality that he was in arrears of rent since 22nd December, 1984 that the landlord retired from the service of Government of India, Ministry of Defence on 20th May, 1949 and his service was thereafter transferred to the Ministry of Rehabilitation from where he was discharged on 30th November, 1965 on the abolition of the Ministry that he had numberother house within the Municipality and that he wanted the house in question to reside and prayed for ejectment of the tenant-appellant. The tenant-appellant on receiving the summons filed an affidavit seeking leave of the Court to companytest the application stating inter alia that he was inducted as a tenant in the premises in question in the year 1968 that the petitioner had been letting out the premises in question at different intervals to other tenants that the present application filed by the petitioner-landlord is mala fide and the defendant is entitled to the leave to companytest the application on the ground that Section 13-A of the said Act does number entitle the petitioner to maintain the present petition. The Rent Controller granted leave to the tenant to companytest R the petition on the following ground Whether the petitioner is a specified landlord as defined in Section 2 hh of the East Punjab Urban Rent Restriction Amendment Act, 1985. The petitioner landlord examined himself and he also filed a certificate issued to him by Regional Settlement Commissioner who was his appointing authority. This certificate was marked as Exhibit A-1 in the case. The tenant-respondent examined himself and stated that the petitioner companyld number get the benefit of Section 13-A of the said Act as he was number the landlord of the said house either before or on the date of his retirement from service or the Union i.e. in 1965, the house being let out to him in 1968. The Rent Controller negatived the companytentions of the tenant- respondent and allowed the application directing the tenant- respondent to vacate the premises within one month from the date of the order. The tenant-appellant preferred an application being Civil Revision No. 2371 of 1986 under Section 18A of the said Act. The revision case was dismissed by the High Court of Punjab and Haryana holding inter alia that the respondent being a specified landlord at the relevant time i.e. within one year of the date of companymencement of the East Punjab Urban Rent Restriction Amendment Act, 1985 to be hereinafter referred to in short as the said Act was entitled to get an order of eviction of the tenant from his house. The order of the Rent Controller was upheld. It was further held that the decisions cited at the bar in support of the companytention that the respondent was number the landlord qua the tenant-appellant on or before his retirement from service, were number applicable to this case as the provisions of the Acts dealt with in those decisions were different from provisions of Section 13-A of the said Act. It is against this judgment and order the instant appeal on special leave has been filed. It is companyvenient to quote the relevant provisions of the said Act before proceeding to determine the questions in companytroversy between A the parties. Sec.2 hh Specified landlord means a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in companynection with the affairs of the Union or of a State. Sec. 13-A Where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of companymencement of the East Punjab Urban Rent Restriction Amendment Act, 1985, whichever is later, applies to the Controller along with a certificate from the authority companypetent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does number own and possess any other suitable accommodation in the local area in which he intends D to reside to recover possession of his residential building or scheduled building as the case may be, for his own occupation there shall accrue, on and from the date of such application to such specified landlord, numberwithstanding anything companytained elsewhere in this Act or in any other law for the time being in force or in any company- tract whether expressed or implied custom or usage to the companytrary, a right to recover immediately the possession of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts Sec.18-A 1 Every application under Section 13-A shall be dealt with in accordance with the procedure specified in this section. No appeal or second appeal shall lie against an order for the recovery of possession of any residential building or scheduled building made by the Controller in accordance with the procedure specified in this Section. Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this Section is according to law, call for the re companyds of the case and pass such order in respect thereto as it thinks fit. In Sohan Singh v. Dhan Raj Sharma, 1983 2 R.L.R. 465, the question was whether the ex-servicemen landlord, Sohan Singh fell within the category of landlord as envisaged in Section 13 3A of Haryana Urban Control of Rent and Eviction Act, 1973 in order to have an order of eviction of the tenant in a summary way. Landlord, Sohan Singh retired from Air Force on 3rd March, 1976 and on 17th November, 1978 he purchased the shop bearing No. 2454 in Block No. II, Patel Road, Ambala. On 2nd February, 1979 an application was made by him for ejectment of the respondent-tenant from the said shop on the ground that he required the same for his personal use of setting up his own business therein, under Section 13 3A of the Act. Section 13 3A provides that in the case of a number-residential building, a landlord who stands retired or discharged from the armed force of the Union of India may apply within a period of three years from the date of his retirement or discharge from service for an order directing the tenant to put the landlord in possession. It was held that the expression landlord would mean a landlord who was a landlord as such qua the tenant and the premises on the date of his retirement. Sohan Singh who pruchased the disputed shop after his retirement was number landlord of the shop on the date of his retirement. The application for ejectment of tenant was, therefore, dismissed. In Bhanu Aththayya v. Comdr. Kaushal Ors., 1979 2 C.J. 338, respondent No. 1 who was in Navy retired from service in February, 1968. Respondent Nos. 1 and 2 who are husband and wife owned the flat in question in a building of the Shankar Mahal Cooperative Housing Society Ltd. Bombay. On 17th July, 1972 respondent No. 2, wife of respondent No. 1 both on her behalf as well as on behalf of her husband gave the flat on leave and licence basis to the petitioner. On 19th November, 1975, the respondent No. 1 secured a certificate from Vice-Admiral Flag officer, Commanding-in- Chief, Western Naval Command, under the provisions of Section 13-Al. On 24th November, 1975, respondent Nos. 1 and 2 served a numberice on the petitioner to quit and vacate. As the petitioner did number vacate, the respondent No. 1 made an application under Section 13-Al of Bombay Rents, Hotel and Lodging House Rates Control Act, 57 of 1947 as amended for an order of his ejectment and for giving him possession of the said flat. The application was ultimately dismissed by the High Court of Bombay on the ground that petitioner was number a landlord qua the tenant and the premises at the time of his retirement from Navy and as such he companyld number get an order of eviction of the petitioner tenant from the suit premises under Section 13-Al. The question whether a retired army officer who acquired a building after his retirement can be deemed to be a landlord within the meaning Section 13-Al of Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 came up for companysideration before this Court in the case of Mrs. Winifred Ross and Anr. v. Mrs. Ivy Fonseca and ors., A.I.R. 1984 SC 458 In this case one Lt. Col. T.E. Ross who was a member of the Indian Army retired from Military service in 1967. The property of which the suit building forms a part originally belongs to his mother-in-law, Mrs. Arcene Parera. She gifted the said property in favour of her daughter Mrs. Winifred Ross, the wife of the plaintiff, on November 9, 1976. The property companysisted of some outhouses and the defendant is a tenant in one of those out-houses for a number of years. The said premises companysisted of two rooms and a verandah. On June 6, 1977, Mrs. Winifred Ross made a gift of the portion occupied by the defendant as a tenant in favour of the plaintiff. The plaintiff thereafter, made an application for eviction of the defendant and for possession of the said premises under section 13-Al of the said Act, which was introduced by an amendment made in 1975. It was held by this Court that the plaintiff companyld number avail of the provisions of Section 13-Al to recover from the tenant possession of the building which he acquired after his retirement. The word landlord used in Section 13-Al refers to an officer of the armed forces of the Union, who was a landlord either before or on the date of his retirement from the defence service of the Union. It has been further held that Section 13-Al can number be liberally interpreted to companyer all retired members of the armed forces irrespective of the fact whether they were landlords while they were in service or number. Such a liberal interpretation of Section 13-Al is likely to expose it to a successful challenge on the basis of Article 14 of the Constitution In the instant case Section 13 of the East Punjab Urban Rent Restriction Amendment Act No. 2 of 1985 which was published in the Pubjab Gazette Extra-ordinary dated 16th November, 1985 companyferred right on the specified landlord to make application at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of companymencement of the East Punjab Urban Rent Restriction Amendment Act, 1985, whichever is later. to the Controller along with a Certificate from the Authority companypetent to remove him from service for directing the tenant to give him possession of the premises. This Section thus companyfers right on the ex- serviceman who is a specified landlord under Section 2 hh of the said Act to apply after retirement within one year of the companymencement of the said Act under Section 13-A of the said Act for eviction of the tenant. The respondent-landlord who retired from the service of the Union is the owner of the house and he is the landlord at the relevant time i.e. after his retirement within one year of the date of companymencement of the said Act i.e. 16th November, 1985 qua the tenant and the premises and the application to the Rent Con troller was made for an order directing the tenant- appellant to give possession of the suit house to him to reside therein as he had numberother house within the Municipality. The respondent in order to companye within the definition of specified landlord has to satisfy two things a he shall be a person who is entitled to receive rent in respect of the house in question from the tenant-appellant at his own account. and b he is holding or has held an appointment in a public service or post in companynection with the affairs of the Union or of State. The petitioner retired from the post of S.D.O. which post he held in the Rehabilitation Department, Government of India. The petitioner as appears from the statements made in the affidavit of the appellant and also from the certificate Exhibit-lA filed by the landlord that he retired from service in 1963 and the appellant has been inducted as a tenant in respect of the said house in 1968. This clearly evinces that the respondent was number a specified landlord within the meaning of Section 2 hh of the said Act as the appellant was inducted as a tenant after his retirement from the service of the Union. Section 13-A of East Punjab Urban Rent Restriction Amendment Act, 1985 in clear terms enjoins that Where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of companymencement of the said Act makes an application to recover possession of the building or scheduled building, the Controller will direct the tenant to deliver possession of the house to him. Therefore to be entitled to have the benefit of Section 13-A of the Act the landlord-respondent will have to fulfil the first qualification i.e. he must be a specified landlord in respect of the house in question on the date of his retirement from the service of the Union i.e. in 1963. The landlord, as it appears, has number fulfilled this requirement in as after his retirement from service of the Union he has let out the premises to the tenant-appellant. It has been urged before us on behalf of the respondent that at the relevant time i.e. after retirement of the respondent from service within one year of the date of companymencement of the said Act he is the landlord of the appellant and as such he falls within the definition of Section 2 hh of the said Act and he becomes a specified landlord. This submission, in our view, cannot be sustained in as much as the words specified landlord as used in section 2 hh refer to the person in service of the Union who is a landlord at the time of his retirement from the public service or post in companynection with the affairs of the Union or of State. It cannot in any manner include an ex- serviceman who was number a specified landlord qua the tenant and the premises on or before the date of his retirement from the service of the Union. This has been very succinctly held by this Court in the case of Mrs. Winifred Ross and Anr. v. Mrs. Ivy Fonseca and Ors. supra which has been referred to hereinbefore. On a companyspectus of the decisions referred to hereinbefore more particularly the decision rendered by this Court in the case of Mrs. Winifred Ross Anr. v. Mrs. Ivy Fonseca and ors. supra it is well settled that in order to get the benefit of eviction of the tenant in a summary way the ex-serviceman must be a landlord qua the premises as well as the tenant at the time of his retirement from service. The ex-serviceman is number companypetent to make an application to the Rent Controller to get possession of his house by evicting the tenant in a summary way unless and until he satisfies the test that he is a landlord qua the premises and the tenant at the time of his retirement or discharge from service. In the instant case the Rent Controller has number at all companysidered this question but he simply held that the petitioner was discharged from service on the abolition of the Department of Rehabilitation and so he was companyered under the definition of specified landlord as given under section 2 hh of the Act. The learned Single Judge of the Punjab and Haryana High Court though numbericed the decision in the case of Bhanu Aththayya v. Comdr. Kaushal and ors. and also in Sohan Singh v. Dhan Raj but without properly companysidering the provisions of Section 2 hh of the Act held that the application under section 13-A of the Act by a specified landlord seeking ejectment of a tenant was companypetent within one year of the companymencement of the amended Act even if there existed numberrelationship of landlord and tenant on the date of retirement of the specified landlord. The learned Single Judge also observed that as there was numberprovision for a specified landlord after his retirement to make an application for ejectment of his tenant within one year after companymencement of the amended Act as occurs in the Punjab Act the ratio of the decision in those cases cited before the Court would number apply. This view of the learned Single Judge in our companysidered opinion is on the face of it erroneous. We have stated hereinbefore that to get the benefit of the summary procedure provided in Section 13-A of the said Act, the ex- serviceman must be a specified landlord at the time of his retirement from service of the Union as provided in Section 2 hh of the said Act. The respondent did number satisfy this basic requirement of Section 2 hh of the Act and so he was number companypetent to maintain an application under Section 13-A of the said Act. It is obvious that the respondent landlord retired from the service of the Union in 1965 and the house in question was let out to the tenant-appellant in 1968. The respondent was number a landlord qua the premises and the tenant on the date of his discharge from service entitling him to avail of the benefit of the provisions of Section 13- A of the Punjab Act. For the reasons aforesaid we allow the appeal and set aside the judgment and orders of the companyrts below. In the facts and circumstances of the case, there will be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No . 579 of 1986 From the Judgment and order dated 15.4.1986 of the Bombay High Court in Crl. R. Appln. No. 160 of 1985. Rakesh Upadhyay, M.M. Kashyap and N.A. Siddiqui for the Appellants. N. Ganpule, S.K. Agnihotri and A.S. Bhasme for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The appellant No. 1 Bakulabai filed an application under s. 125 of the Code of Criminal Procedure, 1973 hereinafter referred to as the Code before the Judicial Magistrate, Degloor, alleging that she was lawfully married to the respondent No. 1 Ganga Ram and that the appellant No. 2 Maroti was born out of this wedlock. She claimed maintenance both for herself and for her son. Ganga Ram denied the marriage as well as the paternity of the appellant No. 2. He also averred that he was already married twice before the wedding pleaded by Bakulabai and that both his wives were living. The Judicial Magistrate accepted Bakulabais case and granted maintenance at the rate of Rs. 100 per month in her favour and additional Rs.50 per month for the minor boy. Ganga Ram moved the Sessions Judge in revision. Bakulabai also filed a revision application for enhancement of the rate of maintenance. The two applications were registered respectively as Criminal Revision No. 83 of 1984 and Criminal Revision No. 110 of 1984, and were heard together. The Sessions Judge accepted the defence case, reversed the findings of the Judicial Magistrate and dismissed the application for maintenance. Revision case No. 83 of 1984 was thus allowed and the wifes application was dismissed. Bakulabai challenged the order before the Bombay High Court by a revision application. By the impugned Judgment the High Court rejected the same holding that since it was the second revision application by the wife it was number maintainable, being barred by the provisions of s. 397 3 of the Code. The Court further proceeded to examine the merits of the case and companycurred with the view of the Sessions Judge. The appellants have number companye to this Court by special leave. On the maintainability of the revision application before it, the High Court took an erroneous view. The provisions of sub-section 3 of s. 397 relied upon, are in the following terms If an application under this section has been made by any person either to the High Court or to the Sessions Judge, numberfurther application by the same person shall be entertained by the other of them. The main judgment of the Judicial Magistrate upholding the appellants claim for maintenance was in her favour and there was numberquestion of her challenging the same. Her challenge before the Sessions Judge was companyfined to the part of the order assessing the amount of maintenance, and this issue companyld number have been raised again by her. Subject to this limitation she was, certainly entitled to invoke the revisional jurisdiction of the High Court. The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court. She companyld number, therefore, be said to be making a second attempt when she challenged this order before the High Court. The fact that she had moved before the Sessions Judge against the quantum of maintenance companyld number be used against her in respect of her right of revision against the Sessions Judges order. Accordingly, the decision of the High Court on this question is set aside and it is held that the revision petition of the appellant before the High Court, except the prayer for enhancing the amount was maintainable. Now, companying to the other aspect, the Judicial Magistrate on a companysideration of the evidence led on behalf of the parties accepted the appellants case. He held that Bakulabai and Ganga Ram had lived together in the same house as husband and wife for a companysiderable period, and the boy Maroti was born of this union. On the question as to whether Ganga Ram was already married and his wife or wives were living on the date the marriage with the appellant Bakulabai is alleged, the Magistrate did number record a categorical finding. According to the case of Ganga Ram, he was first married with Rajabai, and again with Kusumbai in 1969. It was, therefore, argued on his behalf that as he had two living spouses in 1972, he companyld number have lawfully-married a third time in view of the provisions of the Hindu Marriage Act, 1955. The Judicial Magistrate rejected the plea by saying that the second marriage of the respondent with Kusumbai was on his own showing null and void as his first wife was then alive. Dealing with the effect of the first marriage he held that it was number as fact proved. Thus he got rid of the effect of both the marriages by adopting a queer logic. If the story of the first marriage was to be rejected, the second marriage companyld number have been held to be void on that ground. The finding of the Judicial Magistrate on the validity of the marriage of the appellant was, therefore, illegal. We have by our judgment in Criminal Appeal No. 475 of 1983 Smt. Yamunabai v. Anantrao Shivram Adhav and another delivered today held that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the companying in force of the Hindu Marriage Act, 1955, is null and void and the woman is number entitled to maintenance under s. 125 of the Code. Coming to the facts of the present case, it appears that the respondent has satisfactorily proved his case about his earlier marriage with Kusumbai by production of good evidence including a certificate issued by the Arya Samaj in this regard. It is number suggested that Rajabai was living when Kusumbai was married and was dead by the time the appellants marriage took place. The position which emerges, therefore, is that either the respondents first marriage with Rajabai was subsisting so as to nullify his second marriage with Kusumbai, in which case the appellants marriage also was rendered null and void on that very ground or if, on the other hand, the respondents case of his marriage with Rajabai is disbelieved A the marriage of Kusumbai will have to be held to be legal and effective so as to lead to the same companyclusion of the appellants marriage being void on either hypothesis the appellants claim is number companyered by s. 125 of the Code. She cannot, therefore, be granted any relief in the present preceedings. The decision to that effect of the High Court is, R therefore, companyfirmed. The other findings of the Magistrate on the disputed question of fact were recorded after a full companysideration of the evidence an should have been left undisturbed in revision. No error of law appears to have been discovered in his judgment and so the revisional companyrts were number justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate. See Pathumma and another v. Mahammad, 1986 2 SCC 585 . Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child. If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of s. 16 1 of the Hindu Marriage Act, 1955, which reads as follows 16 1 . Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the companymencement of the Marriage Laws Amendment Act, 1976 68 of 1976 , and whether or number a decree of nullity is granted in respect of that marriage under this Act and whether or number the marriage is held to be void otherwise than on a petition under this Act. Even if the factum of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of Clauses b and c of s. 125 1 of the Code specifically referring to an illegitimate child. We, therefore, hold that the order of the Judicial Magistrate allowing the maintenance to the appellant No. 2 was companyrectly passed. The amount of Rs.50 per month was allowed as the mainte- nance of the child in 1984. The revision application filed before the Sessions Judge was rejected. A second application before the High Court was, therefore, number maintainable. We will, therefore, assume that the decision assessing the amount of maintenance as Rs.50 per month in 1984 became final. However, on account of change of circumstances, this amount can be revised after efflux of time. During the last four years the value of money has gone down due to inflation. The child has also grown in age. In the circumstances, we direct the respondent Ganga Ram to pay the appellant No. 1 the maintenance amount for appellant No. 2 at the rate of Rs.150 per month with effect from February, 1988. The arrears up to January, 1988, if number paid, should also be paid promptly. The appeal is allowed in the terms mentioned above. G.N.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 580 of 1976. From the Judgment and Order dated 10.10.1975 of the High Court of Punjab and Haryana in Criminal Miscellaneous No. 772-M of 1974. S. Sodhi for the Appellant. Gopal Subramaniam, Amicus Curiae for the Respondent. The Judgment of the Court was delivered by NATARAJAN, J. This appeal by certificate granted under Article 134 1 c of the Constitution is directed against the judgment of a Full Bench of the High Court of Punjab and Haryana in Raj Kumar, A.S.I. v. The State of Punjab, 1976 IV C.L.R. Pb. Har. page 39 allowing a petition under Section 561 A of the Code of Criminal Procedure 1898 filed by the respondent. The objective in filing the appeal, it was companyceded by Mr. R.S. Sodhi, learned companynsel for the State is the determination of a larger issue transcending the narrow companyfines of the quashing of the criminal proceedings against the respondent viz. the companystruction of Rule 16.38 of the Punjab Police Rules and its applicability to criminal prosecutions launched against the members of the Punjab Police Service for offences under the Indian Penal Code and other Acts. The companytroversy regarding the ambit of Rule 16.38 of the Punjab Police Rules has arisen in the following circumstances. One Jamuna Devi Mukhtiar Kaur gave a report against the respondent, who was an Assistant Sub Inspector in the Punjab Police Service, to the Deputy Superintendent of Police, Patiala alleging companymand of illegal gratification of Rs.200 by him for releasing her husband and brother on bail bonds in a case pertaining to a land dispute. A first information report was registered and a trap was laid for the respondent and he was apprehended as soon as the marked currency numberes treated with phenolophthalene were handed over to him and the marked currency numberes were recovered from him. After companypletion of investigation, the respondent was chargesheeted before the Special Judge, Sangrur. The respondent appeared before the Special Judge and raised an objection to the framing of charges against him on the ground the investigation of the case was in companytravention of Rule 16.38. The Special Judge over-ruled the objection and framed charges and posted the case for trial. The respondent filed a petition before the High Court under Section 561 A of the Criminal Procedure Code 1898, for quashing the proceedings against him before the Special Judge. As there were companyflicting decisions of the High Court in the interpretation of Rule 16.38, a learned Single Judge referred the matter to a Division Bench and in turn the Division Bench referred the matter to a Full Bench. A Full Bench of the High Court reviewed the earlier decisions and held that Rule 16.38 is mandatory and number directory in character and secondly the mandate would govern criminal prosecutions as well as departmental enquiries in equal measure and as such any prosecution launched or departmental enquiry held in violation of the terms of the Rule would vitiate the proceedings companycerned. Having interpreted Rule 16.38 thus, the Full Bench numbericed that the investigation against the respondent had number been done in accordance with Rule 16.38 and therefore the bench allowed the petition and quashed the charges framed against the respondent. The High Court, however, granted a certificate under Article 134 1 c to the State to file an appeal to this Court and that is how the appeal is before us. What, therefore, calls for companysideration is whether the procedure prescribed in Rule 16.38 calls for observance in the case of departmental enquiries alone or whether it would govern criminal prosecutions also for offences under the Indian Penal Code and other Acts, and secondly whether the Rule is mandatory in character or only directory. Our task has been companysiderably lightened by a pronouncement on the first question, with which we are primarily companycerned, by another Bench of this Court in the State of Punjab v. Charan Singh, 1981 2 SCC 197 declaring that Rule 16.38 cannot govern criminal prosecutions against the members of the Police Force as it cannot over-ride the provisions of the Criminal Procedure Code. In spite of the said pronouncement, with which we are in respectful agreement, we feel it necessary to deal with the matter at some length because of certain misconceptions companytained in the judgment of the High Court under appeal. Before we advert to the decisions pertaining to Rule 16.38, we may refer to certain provisions of the Police Act 1861 and the Punjab Police Rules framed thereunder. Section 3 of the Police Act, companyfers the right of superintendence of the Police Force throughout the general police district on the State Government and vests in such Government the right to exercise such powers in that behalf. Section 7 deals with the appointment, dismissal, etc. of inferior officers. The Section lays down that the Subject to the provisions of Article 311 of the Constitution, and to such Rules as the State Government may from time to time make under this Act, the Inspector General, Deputy Inspector General, Asstt. Inspector General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty or unfit for the same or to award any of the lesser punishments prescribed under clauses a b c d for discharge of duty in a careless or negligent manner etc. Besides the power companyferred on the State Government to make Rules under Section 7, there is also provision under Section 12 for the Inspector General of Police, subject to the approval of the State Government, to frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of police force, the places at which the members of the police force shall reside, the services to be performed by them etc. for ensuring the efficiency of the police force in the discharge of its duties. It is in exercise of the powers companyferred by Sections 7 and 12 of the Police Act that the Punjab Police Rules 1934 have been framed. The Rules have been categorised under 28 Chapters for dealing with various matters such as organisational setup, uniforms, arms and ammunition, leave, pension, promotions, rewards, punishments, training, supervision, investigation, prosecution etc. The matters companyered by the Rules make it clear that the Rules have been framed for regulating the set up and the service companyditions of the police force as well as for awarding them rewards and departmental punishments and other matters of internal administration for keeping efficient and disciplined one. It is in that perspective Rule 38 of Chapter 16 has to be viewed. The very first Rule in Chapter 16 sets out the scope and purpose of the Rule companyprised in that chapter. Rules 16.1 reads as follows No police officer shall be departmentally punished otherwise than as provided in these rules The departmental punishments mentioned in the second companyumn of the subjoined table may be inflicted on officers of the various ranks shown in the heading Nos. 3 to 9, by the officers named below each heading in each case, or by any officer of higher ranks. Emphasis supplied Rule 16.38 with which we are companycerned, companytains 7 sub- clauses. For our purpose it is enough if we extract sub- clauses. 1 to 4 and refer in general terms to the companytents of Clauses 5 to 7. 16.38 1 Immediate information shall be given to the District Magistrate or any companyplaint received by the Superintendent of Police, which indicates the companymission by a police officer of a criminal offence in companynection with his official relations with the public. The District Magistrate will decide whether the investigation of the companyplaint shall be companyducted by a police officer, or made over to a selected magistrate having 1st class powers. When investigation of such a companyplaint establishes a prima facie case, a judicial prosecution shall numbermally follow the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in rule 16.38 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed. Ordinarily a magistrate before whom a companyplaint against a police officer if laid proceeds at once to judicial enquiry. He is, however, required to report details of the case to the District Magistrate, who will forward a companyy of this report to the Superintendent of Police. The District Magistrate himself will similarly send a report to the Superintendent of Police in cases of which he himself takes companynizance. The Local Government has prescribed the following supplimentary procedure to be adopted in the case of companyplaints against police officers in those districts where abuses of the law with the object of victimising such officers or hampering investigation is rife. The District Magistrate will order that all petitions against police officers shall be presented to him personally. If he companysiders that these petitions are of a frivolous or factious nature, it is within his discretion to take numberaction on them. When he companysiders an enquiry to be necessary he will use his discretion whether to send the papers to the Superintendent of Police or to a magistrate for judicial enquiry. In the case of formal criminal companyplaints, the District Magistrate will arrange for all cases to be transferred from other companyrts to his own. Clauses 5 to 7 relate to strictures passed by the High Court and other companyrts against police officers and the manner of companymunication of the strictures to the District Magistrate and the Government. Different interpretations were given by different Benches of the High Court of Punjab and Haryana regarding the scope and force of rule 16.38. In Criminal Revision No. 1100 of 1972 Amarjit Singh v. State of Punjab H.R. Sharma, J. held that Rule 16.38 debarred criminal proceedings if the same had been instituted without a prior sanction of the District Magistrate. In Ram Prakash, Asstt. Sub-Inspector v. The State, 1974 Chandigarh Law Reporter 205 Gurnam Singh, J. took a diametrically opposite view. In Hoshiar Singh v. The State, 1965 PLR 438 a Division Bench of the High Court held that Rule 16.38 was attrected in the case of departmental enquiries only and the departmental enquiry would be vitiated if the papers had number been produced before the District Magistrate for getting his sanction at the initial stage. In Nand Singh v. The Superintendent of Police and another, Current Law Journal Pb 146 it was held that the Rule was mandatory. The said view was affirmed by a Full Bench in Nand Mandan Sarup v. The District Magistrate and others, 1966 Current Law Journal Pb 608. It was in that backdrop of companyflicting decisions, the petition filed by the respondent herein under Section 561 A for quashing of the proceedings against him before the Special Judge came to be referred to a Full Bench. The reasoning of the Full Bench for allowing the respondents petition can be summarised thus The Police Act vests the right of superintendence of the police force in a State on the State Government. Section 7 of the Police Act empowers the State Government to frame rules regarding disciplinary matters and Section 12 em- powers the Inspector General of Police, subject to the approval of the State Government, to frame orders and rules relating to the organisation, classification and distribution of the police force, the services to be performed by them etc. Hence the rules framed in exercise of powers companyferred under section 7 and 12 have the force of law and they companystitute a special legislation which takes precedence over the provisions of the Criminal Procedure Code. Section 4 of the Police Act inter alia lays down that the administration of the police, within the jurisdiction of a District Magistrate, shall under his general companytrol and direction, be vested in a District Superintendent and Assistant District Superintendents as the Government may appoint. Consequently, the District Magistrate has statutory authority to exercise companytrol over the administration of the police force in his District including the launching of criminal prosecutions or holding of Departmental enquiries against a member of the police force. Rule 16.38 companytains a mandatory provision regarding the procedure to be followed when any companyplaint is received by the Superintendent of Police against a member of the police force regarding the companymission of an offence by him in companynection with his official relations with the public. The said rule will apply with equal force to investigations relating to criminal offences for which a prosecution is to be launched as it would to enquiries for taking departmental action through disciplinary proceedings. On the basis of such reasoning, the Full Bench over-ruled the decision in Hoshiar Singh v. State of Punjab supra . We will number refer to the decision in Hoshiar Singh supra , since it has been approved by this Court in State of Punjab v. Charan Singh supra , and then advert to some decisions of this Court relevant for companysideration. In that case a Sub-Inspector of Police was challaned under Section 5 2 of the Prevention of Corruption Act and Section 161, Indian Penal Code and was suspended from service and chargesheeted and thereafter a departmental enquiry followed. When a show cause numberice was served on him on the companyclusion of the enquiry intimating him the proposed punishment, he objected to the legality of the enquiry on the ground that numberpermission of the District Magistrate in accordance with Rule 16.38 of the Punjab Police Rules had been obtained. The objection was sustained and the departmental enquiry was quashed. Thereafter, the challan was put into Court and once again an objection was raised that in the absence of a reference to the District Magistrate and his orders thereon directing prosecution, the Special Judge companyld number take companynizance of the case. The Special Judge over-ruled the objection holding that his powers under the Criminal Law Amendment Act were number trammelled by the Punjab Police Rules. A criminal revision was filed before the High Court against the order of the Special Judge and the High Court dismissed the criminal revision holding thus I do number think Rule 16.38 was intended or companyld have the effect of imposing as a companydition precedent to the trial of a police officer in a Court of Law, a sanction or an order by the District Magistrate, as companytemplated therein. The language appears to me to be companyfined only to departmental enquiries. The investigation for establishing a prima facie case is merely meant to guide the District Magistrate, uncontrolled by the opinion of the Superintendent of Police, whether or number a departmental proceeding should be initiated against the guilty party, and it is the procedure and the punishment companytrolling the departmental proceedings alone, which appear to have been prescribed by this rule. In Delhi Administration v. Chanan Shah, 1969 3 S.C.R. 653 an Asstt. Sub Inspector was censured, after summary enquiry for having received illegal gratification in a case he was investigating. The Deputy Inspector General of Police revoked the order of censure and directed departmental action being taken. The departmental enquiry culminated in an order of dismissal against Chanan Shah. An appeal and revision to the higher authorities having failed, Chanan Shah filed a writ petition which was dismissed by a Single Judge but allowed in writ appeal by a Division Bench and the order of dismissal was quashed. The Delhi Administration came in appeal to this Court and this Court held that irrespective of whether Rule 16.38 is mandatory or directory, the authorities had failed to substantially companyply with the provisions of the Rule and, therefore, the laches vitiated the departmental enquiry. The same view was taken in a later case Union of India v. Ram Kishan, 1971 2 C.C. 349 which related to the dismissal of a companystable from service pursuant to a disciplinary enquiry being set aside in a civil suit filed by the dismissed companystable. The decree of the Trial Court was affirmed by the Appellate Court and the High Court and in further appeal to this Court, it was held that as numberimmediate information was given to the District Magistrate in respect of the companyplaint received against the plaintiff companystable and secondly since the District Magistrate has also number decided whether the investigating agency should be a police officer or a magistrate, as prescribed by Rule 16.38, the departmental enquiry was vitiated and, therefore, the plaintiffs suit had been rightly decreed. In State of Uttar Pradesh v. Babu Ram Upadhya, 1961 2 S.C.R. 679 the view taken by the majority of the Bench was that paragraph 486 Rule 1 of U.P. Police Rules was mandatory in character and hence the departmental action taken against the respondent police officer in disregard of the rule was invalid. It may be numbericed that the three decisions of this Court which have been referred to above related to departmental enquiries and number criminal prosecutions for offences companymitted by the delinquent police officers. The pronouncements in these cases will therefore govern only cases where departmental enquiries are held in companytravention of the procedure prescribed by the Police Rules. The reason for a special procedure being prescribed in the Rules for investigations before departmental enquiries are held against delinquent police officers is number far off to see. In the very nature of their duties, the members of the police force would often stand exposed to criticism and companyplaints by number only the members of the public but also by the members of the force themselves and companysequently they stand placed more vulnerable than members of other Government services, of being implicated in false or exaggerated charges. In order to protect them from false implications and resultant proceedings, the Government had thought it necessary to have an initial screening of the companyplaints received against members of the police force by the District Magistrate. Such screening would however extend only to matters which fall within the zone of departmental action and it companyld never extend to cases where the offences alleged to have been companymitted would attract investigation under the Criminal Procedure Code in the same manner the investigation would be attracted if the offences companyplained of had been companymitted by any member of the public. That the procedure prescribed in Rule 16.38 has only a limited field of operation i.e. applicable only to departmental enquiries and punishments companyld be seen from the fact that clause 3 of the Rule enjoins every Magistrate to whom a companyplaint against a police officer is referred by the District Magistrate for judicial enquiry to report the details of the case to the District Magistrate in order to enable the District Magistrate to forward the report to the Superintendent of Police. The clause further says that if the District Magistrate himself takes companygnizance of a case, he should of his own accord send a report to the Superintendent of Police. Clause IV of Rule 16.38 also throws light on the matter and brings out the objective in greater clarity. This clause sets out that in order to protect the interests of police officers serving in districts where petition mongering activities are numberorious, the District Magistrate can direct that all petitions companyplaining about police officers shall be presented to him personally so that he can scrutinize them to find out whether the petitions are of a frivolous nature or they have been engineered by factious groups in the districts etc. In fact, the words used in the clause are of a tell-tale nature viz. companyplaints against police officers in those districts were abuses of law with the object of victimising such officers or hampering investigation is rife. All these features make it clear that the purpose underlying the rule is to enable the District Magistrate and the District Superintendent of Police to exercise personal companytrol and supervision over the companyplaints received against members of the police force in the performance of their duties and enable the District Magistrate to ensure that the companyplaint is number a baseless or mala fide one and secondly to determine whether the companyplaint requires investigation by a police officer or by a selected magistrate. The procedure envisaged by the Rule is for effective check being exercised against victimisation of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other. These rules were number intended to replace and certainly cannot over-ride the provisions of the Criminal Procedure Code. The Full Bench was therefore in error in taking the view that the Rules lay down a special procedure for investigation of all offences companymitted by the members of the police force and, that they have over-riding effect over the provisions of the Criminal Procedure Code in terms of Sections 4 and 5 of the Code. We may number refer to some other decisions where it has been laid down that the provisions of the Police Act cannot prevail over the provisions of the Indian Penal Code. In Maulud Ahmad v. State of U.P., 1963 Supp 2 S.C.R. 38, the appellant who was a head companystable companytended that the prosecution launched against him was barred by limitation under Section 42 of the Police Act because the prosecution had been launched beyond the period of three months prescribed by Section 42. The companytention was rejected and it was pointed out that the period of three months prescribed under Section 42 for companymencing a prosecution would govern only prosecutions of a police officer for something done or intended to be done by him under the provisions of the Police Act or under general police powers given by the Act and Section 42 would number apply to prosecutions against a police officer for anything done under the provisions of any other Act or under Police powers companyferred under any other Act. It was also brought to focus that Section 36 of the Police Act explicitely provides that numberhing companytained in the said Act shall be companystrued to prevent any person from being prosecuted under any Regulation or Act for any offence made punishable by the Act or for being liable under any other Regulation or Act or any other or higher penalty or punishment that is provided for such offence by the Police Act. The above ratio was followed in Ajaid Singh v. Joginder Singh, 1969 1 S.C.R. 145. In yet another case viz. S.N. Sharma v. Bipen Kumar Tiwari Ors., 1970 1 S.C.C. 653 it was held that the power of the police to investigate a companynizable offence is uncontrolled by the Magistrate and it is only in cases where the police decided number to investigate the case that the Magistrate can intervene and either direct an investigation, or in the alternative himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case and that the powers of the police to investigate have been made independent of any companytrol by the Magistrate. Lastly, we companye to the decision in the State of Punjab Charan Singh supra where the identical question under companysideration had companye up for determination by this Court. The respondent therein was companyvicted by the Special Judge, Ludhiana of an offence under Section 5 1 d read with Section 5 2 of the Prevention of Corruption Act and sentence to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 100. On appeal, a Single Judge of the High Court acquitted the respondent on the ground the prosecution was vitiated by reason of number-compliance with the provisions of Rule 16.38 of the Punjab Police Rules, 1934. In the appeal preferred by the State, this Court allowed the appeal and held as follows A perusal of Chapter XVI of the Punjab Police Rules shows that the provisions of the Chapter deal with departmental punishments and the procedure to be followed in imposing such punishments. Guidance is given as to how police officers guilty of misconduct and criminal offences may be dealt with It is clear that Rule 16.38 is number designed to be a companydition precedent to the launching of a prosecution in a criminal companyrt it is in the nature of instructions of the department and is number meant to be of the nature of a sanction or permission for a prosecution number can it over-ride the provisions of the Cr.P.C. and the Prevention of Corruption Act. We agree with the observations of Dua and Mahajan, JJ in Hoshiar Singh v. State supra . Though the decision of the Full Bench of the Punjab High Court which is number under companysideration had number been brought to the numberice of the Learned Judges when they rendered judgment in State of Punjab v. Charan Singh, we are in full agreement with the pronouncement of the Bench as the companyclusion therein accords with our own companyclusion and the reasons therefore. We therefore hold that the Full Bench was in error in taking the view that the Punjab Police Rules read in companyjunction with the Police Act prescribe a different procedure for the investigation and prosecution of offences companymitted by Police officers under the I.P.C. or other Acts in companynection with their relations with the public and that the rules companystitute a special statute and take precedence over the provisions of the Cr.P.C. The Full Bench has failed to numbere that Rule 16.38 only mandates the investigation of cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder. We therefore hold that the decision of the Full Bench under appeal in Raj Kumar, S.I. v. The State of Punjab supra is number in accordance with law and has to be set aside. However, as mentioned at the outset, the State is number interested in reviving the charges against the respondent and pursuing the trial because of the long lapse of time. Therefore, while allowing the appeal and setting aside the judgment of the High Court, we leave undisturbed the quashing of the charges framed against the respondent. Since the respondent did number enter appearance or engage a companynsel to companytest the appeal in spite of the numberice served on him, we requested Mr. Gopal Subramaniam, Advocate, to act as amicus curiae and render assistance to the Court on behalf of the respondent. Mr. Gopal Subramaniam readily companyplied with our request and placed all the authorities for our companysideration and we thank him for his assistance and place on record our appreciation of the services rendered by him.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 571 of 1987. From the order dated 5.12.1986 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No. 424/86-B-2. R. Andhyarujina, F.H.J. Talyarkhan, Shri Narain, R.K. Krishnamurthi and Sandeep Narain for the Appellants. K. Ganguli, P. Parmeswaran and Ms. Radha Rangaswamy for the Respondents. The Judgment of the Court was delivered by A RANGANATH MISRA, J. This appeal under section 130-E of the Customs Act is directed against the decision of the Customs, Excise Gold Control Appellate Tribunal, New Delhi, by which the Tribunal has reversed the appellate decision of the Collector of Customs Appeals , Bombay. The short point involves in this appeal is as to whether the imported special purpose companyplex machine has to be charged to customs duty under item 89.59 1 as claimed by the Revenue or under 84.45/48 of the tariff schedule as maintained by the appellant. If the appellants claim is accepted the duty is at the rate of 40 per cent while if the departments stand is maintained it is at the rate of 60 per cent. The Assistant Collector took the view that the imported machine was number manufacturing carburettors and was discharging an individual function of plugging holes in the carburettor body with the help of lead shots. Therefore, the appropriate entry was 84.59 1 of the Customs Tariff. The appellant challenged the order of the Assistant Collector by preferring an appeal to the Collector Appeals . He took the view that the imported machine by plugging holes on the carburettor body with the help of lead shots was clearly a machine which was fully companyforming to the description of a machine for treating metals inasmuch as it was treating carburettor body and preparing it for being revetted. The plugging on the carburettor body, the Collector felt, was, therefore, in the nature of treatment on the metalic body for making it revetable subsequently even otherwise also the machine by plugging holes on the carburettor body was companyfirming to the description of a machine tool as given under heading 84.54/48 of the Customs Tariff. He therefore, accepted the appellants companytention. On further appeal the Tribunal after discussing the stand-point of the two sides came to the following companyclusion Our companysidered view is that the function of the machine is to plug the holes of carburettor body. The cutting or trimming operation is incidental to this function as it removes the extruded portion of the lead shots. The function of checking is also a part of the main function of plugging as the object of checking is to ensure that the plugging has been done perfectly to make it air-tight. None of these functions can be companysidered to be treating metal within the meaning of sub-heading 2 of Tariff Heading 84.59. The function of plugging the holes of carburettor body does number amount to working metal. It does number change the shape or form of the metal. The portion of the machine which cuts the extruded portion of lead shot is number a reaming machine working the internal surface of an existing hole to exact dimension within the meaning of Explanatory Note 84.45 A 5 of the CCC N Volume 3 , Chapter 84.45. The imported machine in question does number fall within the definition of machine tool given in MC. Graw Hill Dictionary of Scientific and Technical Term as cited by the learned S.D.R. Classification of the impugned machine under Tariff Heading 84.45/48 is, therefore, ruled out. Even by taking all the functions of the machine into companysideration, the classification for the purpose of customs duty will have to be determined keeping in view Section Note 3 in Section XVI and Chapter Note 5 of Chapter 84 of the First Schedule to the Customs Tariff Act, 1975, according to which the principal function will be determining factor. The principal function of this machine is to plug the holes of carburettor body. The machine does number fall under any of the heading of Chapter 84 of the Tariff. 84.59 of Schedule I provides Machines and mechanical appliances having individual functions, number falling within any other heading of this Chapter 1 2 60. The entry is, therefore, a residuary one and indisputably if any other entry applies, application of entry 84.59 is ruled out. The appellant maintains that the appropriate entry to apply to its case is 84.45/48. That provides Machine tools for working metal 40. Machine tool, according to Tool Engineers Handbook published by Mc Graw Hills means any machine operating other than by man power which employs a companytact tool for working natural or synthetic material. Mc. Graw Hill Dictionary of Scientific and Technical Terms A gives the following meaning A stationary power driven machine for the shaping, cutting, turning, boring, drilling, grinding or polishing of solid parts, especially metals. Even according to the Department, machine tools companying under entry 84.45 are machines used for shaping or surface working metal or metal carbides by either cutting away or otherwise removing metal or metal carbides for example, lathes, drilling, planing, slotting, milling or grinding machines . changing the shape or form of the metal without removing any of it. The numbere indicates that machine tools in general remain classified under this heading even if specialised for a particular industry. Machine tools include slotting machines, drilling and boring machines, tapping machines, reaming machines and riveting machines. Counsel for the appellant produced before us a carburettor without being treated by the machine and another which has already been treated. He also produced a lead shot as also a numberle and indicated the drilling process which is carried on by the machine on the carburettor. We are of the view that the machine in question is indeed a multy-purpose one and keeping its performance in view we are inclined to agree with the submission of the companynsel for the appellant that the machine is a machine tool working on metal and should legitimately find its way into entry 84.45/48. Once it is so identified it does number get into the residuary entry. In our view the Collector had reached the companyrect companyclusion. The appeal is allowed. The order of the Tribunal is vacated and that of the Collector is restored. Parties are directed to bear their own companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 468 of 1988. From the Order dated 7.7.1987 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No. 383/83-D. Ramaswami, Additional Solicitor General, Ms. Indu Malhotra and Mrs. Sushma Suri, for the Appellant. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal under Section 35L b of the Central Excise and Salt Act, 1944 hereinafter called the Act . The appeal is directed against the Order of the Customs Excise and Gold Control Appellate Tribunal hereinafter called the CEGAT . The respondent herein filed a classification list on 16th March, 1982 seeking approval of Sawn timber and dried timber as number-excisable. The submission of the respondent was that timber logs were only sawn into sizes and these did number tantamount to any manufacture. However, the Assistant Collector, Madras, held that the companyversion of timber logs into sawn timber satisfied the companyditions of manufacture insofar as the companyversion of timber logs into sawn timber involves transformation whereby a new and different article with the distinct name, character or use emerges which is different from timber logs. It was held accordingly that excise duty 8 ad valorem under Tariff Item 68 of the erstwhile Central Excise Tariff was leviable. The respondent filed an appeal before the Collector of Appeals who companycurred with the Assistant Collector upholding the duty. Aggrieved thereby the respondent filed an appeal before the CEGAT. The Tribunal in the Judgment under appeal, relied on its decision in the case of Sanghvi Enterprises, Jammu, Tawi v. Collector of Central Excise, Chandigarh, 1984 Vol. 16 ELT 317 and the Karnataka High Court in the case of Y. Moideen Kunhi Ors. v. Collector of Central Excise, Bangalore Ors., 1986 Vol. 23 ELT 293 and came to the companyclusion that numbernew product emerges by sawing of timber into several sizes. In the premises the Tribunal allowed the appeal of the respondent. Hence, this appeal. It is well-settled that excise-duty becomes chargeable only when a new and different article emerges having a distinct name, character and use. See in this companynection the observations of this Court in Union of India v. Delhi Cloth General Mills, 1963 1 Suppl. SCR 586 and South Bihar Sugar Mills Ltd. etc. v. Union of India Ors. 1968 3 SCR This principle is well-settled. This is a question of fact depending upon the relevant material whether as a result of activity, a new and different article emerges having a distinct name, character and use. The use of expression manufacture was explained in the case of Allenburry Engineers Pvt. Ltd. v. Ramakrishna Dalmia Ors., 1973 2 SCR 257. In State of Orissa Ors. v. The Titaghur Paper Mills Co. Ltd. Anr., 1985 3 SCR 26 which was a decision on the Orissa Sales Tax Act, this question was companysidered in the background of the fact whether planks, cut into sizes, etc., sawed out of logs, are different from logs in its nascent state. It may be worthwhile to numbere that manufacture implies a change, but every change is number manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more was necessary and there must be transformation a new and different article must emerge having a distinct name, character or use. See Union of India v. Delhi Cloth Mills supra at page 596 of the report. Having regard to the facts found in this case by the Tribunal, which ultimately is the final fact finding authority, we are of the opinion that regard being had to the principles for determining the questions which were companyrectly applied in the decision of the Tribunal, in the facts of this case, the companyclusion of the Tribunal is unassailable. In the premises there is numbermerit in this appeal and the same is accordingly dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 4145-46 of 1986. From the Judgment and order dated 10.7.85 and 11.11.85 of the High Court of Calcutta in Appeal No. 477 of 1984. Tapas Ray and B.R. Agarwal for the Appellant. A. Bobde, Rajiv Dutta and Ms. Mridula Ray for the Respondents. The Judgment of the Court was delivered SHARMA, J. By the impugned judgment the Division Bench of the Calcutta High Court set aside the ex-parte decree passed by the Original Side of the Court in favour of the plaintiff Sudha Devi, the present appellant. The dispute between the parties is in regard to a flat in a building on Lord Sinha Road, Calcutta. The plaintiff prayed for a decree for Rs.1,44,730 as past mesne profits besides future mesne profits at the rate of Rs.170 per day and for if necessary, decree as against the third respondent for possession of the flat described in the plaint. By way of an alternative relief to the money claimed, an inquiry for determination of the mesne profits was asked for. None of the defendants appeared. At the ex-parte trial the plaintiff examined one witness and tendered certain documents in evidence. The learned Single Judge decreed the suit and the defendant No. 3 present respondent No. 1 filed an appeal therefrom which was allowed on 10-7-1985 by the judgment which is under challenge in Civil Appeal No. 4146 of 1986. The plaintiff thereafter filed an application with a prayer to modify the judgment and remand the suit for retrial. The prayer was rejected by the order dated 11-10-1985. Civil Appeal No. 4145 of 1986 is directed against this order. According to the plaintiffs case, the defendant No. 1 Baranagar Jute Factory Company Ltd. was the tenant in respect to the flat in question under the plaintiff. The Jute Company defaulted in payment of rent and also wrongfully sublet the flat to the second defendant Sadhan Chattopadhyaya, which led to the filing of an eviction suit by the plaintiff. Both the defendants were impleaded in the suit but they did number appear to companytest. An ex-parte decree of eviction was passed on 19-2-1982. It is further pleaded that subsequent to the decree, either of the two defendants or both wrongfully inducted the third defendant to occupy the demised flat. The plaintiff was, therefore, entitled to the reliefs mentioned in the plaint. The third defendant filed an application under the provisions of Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree, but later withdrew the same and assailed the decree in appeal on merits. The Letters Patent Bench allowed the appeal and set aside the decree on the ground that the plaintiff, on the basis of the meagre evidence led by her, failed to establish her case. The fact that the plaintiff obtained an ex-parte decree in the earlier suit against the defendant No. 1 and 2 is established by the companyy of the decree exhibited in the case. The allegation in the plaint so far as the third defendant is companycerned, is in paragraph 7 in the following words Subsequent to the said Decree on a date or dates which the plaintiff is unable to specify until after disclosure by the defendants, the first and or second defendants wrongfully permitted and allowed the third defendant to occupy the said demised flat. The first and or second defendants by themselves and or by the third defendant are still in wrongful possession of the said demised flat. The only evidence relevant to this part of the case is to be found in the oral evidence of the plaintiffs sole witness Nand Kumar Tibrewal. The High Court in appeal has declined to rely on his evidence mainly on the ground that the witness has number disclosed his companycern with the suit property or his relationship with the plaintiff. He has been rejected as incompetent. The learned Counsel for the appellant companytended that the witness number deceased was the husband of the plaintiff-appellant and thus he was fully companyversant with the relevant facts. The criticism by the High Court that the witness did number state anything in his evidence which companyld companynect him with the plaintiff or the property and thus make him companypetent was attempted to be met before us by relying on an affidavit filed in this Court. We are afraid, the plaintiff cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage. Besides, affidavits are number included in the definition of evidence in s. 3 of the Evidence Act and can be used as evidence only if for sufficient reason companyrt passes an order under Order XIX, Rules 1 or 2 of the Code of Civil Procedure. This part of the argument of Mr. Tapas Ray must, therefore, be rejected. The learned companynsel next urged that even ignoring the relationship of the witness with the plaintiff, his evidence is adequate to prove the plaintiffs case which has number been rebutted by any of the defendants either by filing a written statement or cross-examining the witness. Mr. Bobde, the learned companynsel representing the defendant No. 3 respondent No. 1 before us , companytended that the witness companytradicted the case pleaded in the plaint by positively stating that the defendant No. 3 was in possession of the flat in question from before the date of the decree passed in the earlier suit. The plaintiffs assertion in paragraph 7 of the plaint is thus companytradicted and the suit cannot be decreed on its basis. The learned companynsel proceeded to analyse the situation arising out of the records of the case to show that if the defendant No. 3 is held to be in possession since before the earlier decree, other issues would arise in the suit, on which the plaintiff will be required to lead further evidence. The learned companynsel strenuously argued that in the facts and circumstances of the case, the prayer of the plaintiff made after the disposal of the appeal before the Letters Patent Bench for remanding the suit to the learned Single Judge Original Side for retrial was fit to be allowed and that Civil Appeal No. 4145 of 1986 should be allowed by this Court. On the failure of the defendants to appear in the suit, the learned trial Judge decided to proceed with the case ex-parte. Even in absence of a defence the companyrt cannot pass an ex-parte decree without reliable relevant evidence. The fact that the plaintiff chose to examine some evidence in the case cannot by itself entitle her to a decree. The High Court in appeal was, therefore, perfectly justified in scrutinising the evidence from this angle. The suit was filed and the relief was claimed on the basis that the third defendant was inducted in the flat in question by the other two defendants after they had already suffered a decree, and there is number an iota of evidence led by the plaintiff to prove this story. On the other hand, the evidence of the sole witness disproves this part of the case. Having regard to the allegations in the plaint, the facts emerging from the documents and the oral evidence, it is clear that several other questions may arise for companysideration if the defendant No. 3 is assumed to be in possession from before the earlier decree. We, therefore, agree with Mr. Bobde that the plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is. After hearing the learned companynsel for the parties at companysiderable length, we also agree with Mr. Bobde that in the interest of justice the prayer made on behalf of the plaintiff before the High Court after the disposal of the appeal for remand and retrial of the suit is fit to be allowed. As numberody is disputing this position before us, we do number companysider it necessary to further deal with this aspect. In view of the prayer made by the plaintiff in the High Court and in Civil Appeal No. 4145 of 1986 before this Court and the companycession of the defendant number 3 before us, we hold that the suit should be sent back to the learned Single Judge for retrial. The plaintiff may file an application for amendment of her pleading, if so advised, and in that case the learned Single Judge shall dispose it of in accordance with law. The defendants will thereafter be allowed to file their written statements within a period to be indicated by the Court. The suit will thereafter be taken up for further trial as expeditiously as may be possible. The evidence already led by the plaintiff shall companytinue to be evidence in the suit. In the result, the judgments of the High Court dated 10-7-1985 and 11-10-1985, passed in Appeal No. 477 of 1984 are set aside and the suit is remanded to the learned Single Judge for disposal in the light of the observations made above. We feel that the suit ought to be disposed of as expeditiously as possible and we expect and hope that the trial Judge will be able to dispose it of within six months. The appeals before us are allowed in the above terms.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No 757 of 1988. From the Judgment and Order dated 14.8.1986 of the Allahabad High Court in F.A. No. 448 of 1978. Ramaswamy, Additional Solicitor General, Pramod Swarup and P. Parmeshwaran for the Appellants. P. Gupta for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. The appeal is disposed of by the judgment hereunder. It appears that on or about 18th September, 1969, four agreements were entered into between M s. L.K. Ahuja Co. and Union of India, represented by the Executive Engineer, Northern Railway, Allahabad, for the companystruction of certain quarters. It was followed by supplementary agreement entered into sometime in 1972. It is stated that all the four companytracts were executed and companypleted by the first respondent on diverse dates. The last one was on 30th May, 1971. Between 29th May, 1972 to 19th June, 1972, the respondent accepted the four final bills and gave numberclaim declaration in respect of the four companytracts. The respondent wrote a letter to the Additional Chief Engineer, R.E.N.R. Allahabad, stating that Rs.1,91,137 were due on account of the work executed and requested him to refer the dispute to the Arbitrator. On 4th June, 1976 a reply was sent to the above letter stating that there was numberdispute between the parties and, hence, numberquestion of appointment of any Arbitrator arose. On 13th December, 1976, an application was filed by the respondent in the Court of Civil Judge, Allahabad, for appointment of an Arbitrator under Section 20 of the Arbitration Act, 1940 hereinafter called the Act . That application was dismissed on 10th February, 1978 as being barred by limitation. There was an appeal from the said decision to the High Court of Allahabad and the High Court by its impugned Judgment and Order dated 14th August, 1986 allowed the appeal. Hence, this appeal. The sole question, involved in this appeal, is whether the High Court was right in dismissing the application. In matters of this nature, the main question is whether the application under Section 20 was within time. Though there was some doubt before but number it is well- settled in view of the decision of this Court in Kerala State Electricity Board, Trivandrum v. T.P.K.K. Amson Beson, Kerala, 1977 1 SCR 996 that Article 137 would apply to any petition or application filed under any Act to a Civil Court. The Words any other application this Court held under Article 137, cannot be read on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in part I of the third division. The aforesaid view has to be harmonised with the view of this Court in Wazirchand Mahajan Anr. v. Union of India, 1967 1 SCR 303. There this Court found that the second appellant had purchased from the Himachal Pradesh Government the right to extract and companylect certain medicinal herbs from the forests of Chamba District. The period of agreement was one year from September 1, 1960. Under an arbitration clause in the agreement all disputes between the parties were to be referred to the Deputy Commissioner, Mandi District Himachal Pradesh. The second appellant transferred all his rights under the agreement to the first appellant with the companysent of the State of Himachal Pradesh. Disputes arose between the parties in October, 1950. On May 30, 1952 the appellants addressed a letter to the Chief Conservator of Forests, Himachal Pradesh requiring that officer to submit the matters in difference to the arbitration of the Deputy Commissioner, Mandi Distt. By a letter dated June 23, 1952, the Chief Conservator declined to agree to a reference companytending that the matters desired to be referred were outside the arbitration clause. On June 22, 1955 the appellants applied to the District Court of Chamba for an order that the agreement be filed in Court and the disputes between them and the State be referred to the sole arbitration of the Deputy Commissioner of Mandi Distt. The State of Himachal Pradesh companytended, inter alia that the application for filing the arbitration agreement was barred by law of limitation as the right to apply if any arose in 1950 and number in June, 1952 as alleged. The Court of First Instance held in favour of the appellants. In appeal the Judicial Commissioner reversed the order of the Trial Court. In the view of the Judicial Commissioner an application for filing an arbitration agreement under Section 20 of the Act was governed by Article 181 of the Limitation Act, 1908 and since the period of three years prescribed thereby companymenced to run from the date on which the differences arose between the parties from the month of September, 1950 and in any case on September 1, 1951, the application of the appellants was held to be barred. The Judicial Commissioner was in error, hence, according to this Court in rejecting the application of the appellants for filing the arbitration agreement as barred under Article 181 of the Limitation Act. It was reiterated that the terms of Article 181, though general and apparently number restricted to applications under the Code of Civil Procedure have always been interpreted as so restricted. In the aforesaid background this Court directed the arbitration agreement to be filed. This question was again companysidered by this Court in Mohd. Usman Military Contractor, Jhansi v. Union of India, Ministry of Defence, 1969 2 SCR 233. There the appellant had entered into a companytract with the Government of India. The companytract companytained an arbitration clause. For certain supplies made under the companytract the appellant made representations to the Government for payment and for arbitration of disputes. On or about July 10, 1958 Government refused to refer the matter for arbitration. On July 11, 1961 the appellant filed an application in the Court of District Judge under Sections 8 20 of the Act, for filing the arbitration agreement and for an order of reference of the disputes to an arbitrator appointed by the Court. The respondent companytended that the application was barred by Limitation. The learned District Judge allowed the application, holding that there was numberlimitation for making an application under Sections 8 20 of the Act. The defendants appeal was dismissed by the High Court as incompetent insofar as it challenged the order under Section 8 but was allowed insofar as it challenged the order under Section 20 of the Act. The High Court held that an application under Section 20 was governed by Article 181 of the Indian Limitation Act, 1908. In companying to this companyclusion the High Court took into account the settled judicial view that the operation of Article 181 was limited to applications under the Code of Civil Procedure and reasoned that Article 181 should be companystrued as if the words under the Code were added in it. The Arbitration Act, 1940 repealed para 17 of the second schedule to the Code and re-enacted it in Section 70 with minor modifications. That being so Section 8 1 of the General Clauses Act, 1897 applied and the implied reference in Article 181 to para 17 of the second schedule to the Code should be companystrued as a reference to Section 20 of the Act. In the appeal by certificate this Court held that by the Arbitration Act, 1940 the Legislature amended Articles 158 and 178 of the Limitation Act and made them applicable to the relevant proceedings under the Arbitration Act but numbersimilar change was made in Article 181. It was manifest that save as provided in Articles 158 178 there would number be any limitation for other application. In the circumstances the Court found it impossible to companystrue the implied reference in Article 181 as a reference to the Arbitration Act, or to hold that Article 181 applied to applications under that Act. In the premises the Court held that an application under Sections 8 20 of the Arbitration Act, 1940 was number governed by Article 181 of the Limitation Act. In that view of the matter the application was held to be barred by limitation. The question is number companycluded as mentioned hereinbefore vide this Courts decision in Kerala State Electricity Board, Trivandrum v. T.P.K.K. Amsom Besom, supra . It appears that these questions were discussed in the decision of the Calcutta High Court in Jiwnani Engineering Works P. Ltd. v. Union of India, 1978 AIR Cal. 228 where one of us-Sabyasachi Mukharji was a party and which held after discussing all these authorities the question whether the claim sought to be raised was barred by limitation or number, was number relevant for an Order under Section 20 of the Act. Therefore, there are two aspects. One is whether the claim made in the arbitration is barred by limitation under the relevant provisions of the Limitation Act and secondly, whether the claim made for application under Section 20 is barred. In order to be a valid claim for reference under Section 20 of the Arbitration Act, 1940, it is necessary that there should be an arbitration agreement and secondly differences must arise to which the agreement in question applied and, thirdly, that must be within time as stipulated in Section 20 of the Act. In the instant case it appears that there was an arbitration agreement as found by the High Court companyering the disputes. It is also obvious that differences existed. There was an assertion of claim and denial of the same. It is stated in the judgment of the High Court that under the agreement the appellants had claimed a sum of Rs. 1,91,636 and, as such, the dispute was liable to be referred to arbitration in terms of the agreements entered into between the parties. Further, for the purpose of getting an arbitrator appointed, a letter dated June 4, 1976 was sent by the appellant to the Additional Chief Engineer, Allahabad. The respondent did number take any step in time. The appellant filed an application on 4.6.1976 under Section 20 of the Act. It was companytended before the learned Trial Judge that the work under all the four companytracts had been fully executed by the appellant on different dates and the respondents claimed that the appellant had accepted full and final payment of the agreements which had been executed by it and numberclaim declaration in respect of the same had been given by the appellant. It was, therefore, submitted that since there was numberdispute, the application filed under Section 20 of the Act, was misconceived. The Trial Court held that the Court had numberjurisdiction under Section 20 of the Act. The respondent came up in appeal before the High Court. The question, therefore, was whether there was a valid claim under section 20 of the Act to be referred in accordance with law. In view of the well-settled principles we are of the view that it will be entirely a wrong to mix-up the two aspects, namely, whether there was any valid claim for reference under Section 20 of the Act and, secondly, whether the claim to be adjudicated by the arbitrator, was barred by lapse of time. The second is a matter which the arbitrator would decide unless, however, if on admitted facts a claim is found at the time of making an Order under Section 20 of the Arbitration Act, to be barred by limitation. In order to be entitled to ask for a reference under Section 20 of the Act, there must be an entitlement to money and a difference or dispute in respect of the same. It is true that on companypletion of the work, right to get payment would numbermally arise and it is also true that on settlement of the final bill, the right to get further payment gets weakened but the claim subsists and whether it does subsist, is a matter which is arbitrable. In this case the claim for reference was made within three years companymencing from April 16, 1976 and the application was filed on December 18, 1976. We are, therefore, of the view that the High Court was right in this case. See in this companynection the observations of this Court in Major Retd. Inder Singh Rekhi v. D.D.A., 1988 3 SCR 351. In the aforesaid view of the matter this appeal must fail and is accordingly dismissed.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Special Leave Petition Criminal No. 3115 of 1987. From the Judgment and Order dated 29.10.1987 of the Delhi High Court in Criminal Writ Petition No. 219 of 1987. Kapil Sibal, Pinaki Mishra, Ms. Bina Gupta and Atul Tewari for the Petitioner. Kuldip Singh, Additional Solicitor General, V.C. Mahajan, C.V. Subba Rao, Ms. A. Subhashini, Hemant Sharma and Arun Madan for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The petitioner has challenged his order of detention made under Section 3 1 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 hereinafter referred to as the COFEPOSA . He filed an application under Article 226 of the Constitution before the Delhi High Court, being Writ Petition No. 219 of 1987, which was dismissed by the judgment dated 29-10-1987 impugned in the S.L.P. Crl. 3115 of 1987. He has also filed an application directly before this Court under Article 32 of the Constitution which has been registered as Criminal Writ Petition No. 830 of 1987. In January 1987, on receipt of a companyfidential information by the Directorate of Enforcement, Delhi Zone, New Delhi, that a group of persons were engaged in illegal activities causing remittances of large amounts of money to foreign companyntries, an inquiry was instituted. It appeared that the remittances were ostensibly made for import of certain goods on the basis of forged documents and actually goods were number received from outside. Information companylected in the companyrse of inquiry disclosed that a number of persons were engaged in the criminal activities and were operating through five Indian firms and a number of foreign firms in Hong Kong and Singapore. On 20-2-1987, one Sita Ram Aggarwal, associate of the petitioner, disclosed during his interrogation, facts which indicated that the petitioner was the main person directing the illegal activities. The petitioner was apprehended in a hotel in Calcutta on 2-4-1987 and on being questioned, made certain statements. He was formally arrested the next day and was produced before the Additional Chief Metropolitan Magistrate, New Delhi, who remanded him to judicial custody till 13-4-1987. Sita Ram Aggarwal, the aforesaid associate of the petitioner was in the meantime enlarged on interim bail which wasextended after expiry of the initial period, and, according to the case of the respondents, the detaining authority apprehended that the petitioner also was likely to be released on bail on 13-4-1987. In this background the impugned order of detention was passed and served on him. The application for bail by the petitioner which had already been filed was actually allowed the same day, i.e. on 13-4-1987. After his representation against the detention order was rejected, the petitioner moved the Delhi High Court for a writ of habeas companypus which was dismissed by the order dated 29-10-1987 challenged in the special leave petition. The Writ Petition No. 830 of 1987 was filed before this Court on 9-11-1987. Both the cases are being disposed of by this judgment. When the cases were placed for preliminary hearing before us, we directed numberice to be issued only on two of the grounds taken by the petitioner, namely, whether there was companypelling necessity for passing the order as the petitioner was already in judicial custody, and whether the order was passed for the companylateral purpose to frustrate the grant of bail and was punitive in nature. The learned companynsel for the petitioner has companytended that the impugned order amounts to double detention of the petitioner as he was already in jail when the detention order was made. Relying upon several decisions of this Court it was argued that it was essential for the detaining authority to have been aware of the fact that the petitioner was already in jail and was likely to be released on bail and further he had to be satisfied that companypelling necessity existed for the detention. It is said that numbere of these companyditions is satisfied. Mr. Kuldip Singh, the learned Additional Solicitor General appearing on behalf of the respondents said that there cannot be any manner of doubt that the detaining authority was fully aware of the fact that the petitioner was already in custody and that he was likely to be released on bail on 13-4-1987. Besides, relying on the companynter affidavit, the learned companynsel placed before us the original records of the case for our perusal. It appears that a numbere specifically mentioning these facts was on the file and immediately there-after the detaining authority recorded his order. It was urged on behalf of the petitioner that the respondents were number entitled to rely on the original file for this purpose and that the awareness of the detaining authority ought to have appeared from the grounds themselves and unless that is shown, the detention order cannot be defended. Even assuming that the stand taken on behalf of the petitioner is companyrect, he cannot succeed in the present case. A perusal of the grounds which runs into many pages clearly indicates that the detaining authority was companyscious of the fact that the petitioner was in judicial custody and was apprehensive that he would be released on bail. In paragraph 24 of the grounds it was stated that the petitioner had been arrested on 3-4-1987 and was in judicial custody till 13-4-1987 and in paragraph 26, the detaining authority reminded the petitioner that an application for bail moved on his behalf was going to be heard by the Additional Chief Metropolitan Magistrate on 13-4-1987. In paragraph 38, the order passed on the bail application of the petitioners associate Sita Ram Aggarwal was referred to. Thereafter, the detaining authority had mentioned his satisfaction about the necessity of the detention. On the question as to whether the detaining authority was satisfied about the companypelling necessity for the detention order also, there is numbermerit in the petitioners case. It is true that the order companyld number have been passed for the purpose of circumventing the expected bail order. The object of detention has to be prevention of a detenu from indulging in activities prejudicial to the companyservation of foreign exchange resources, and number to facilitate his trial in a criminal case number as a punitive measure. The learned Additional Solicitor General placed before us the grounds served on the petitioner, at some length, wherein it is inter alia stated that the petitioner was running a business firm under the name and style of M s. B.N. Corporation in Hong Kong as also offices in other places including Singapore and got certain business firms in India detailed therein registered in Nagaland under farzi names and employed a number of persons who were acting at his behest. The role of the petitioner has been detailed in the grounds showing how he got illegally siphoned the foreign exchange to the tune of about 2 crores of rupees out of the companyntry. Besides the aforementioned Sita Ram Aggarwal and the petitioners nephew Subhash Aggarwal, the other associates working in accordance with the direction of the petitioner are mentioned along with their activities. The grounds also referred to the statements made by Sita Ram Aggarwal which indicated that the petitioner was travelling by air under assumed names and has been dodging the authorities when they attempted to companytact him, before he was apprehended in a Calcutta hotel. It is further said that the petitioners firm M s. B.N. Corporation of Hong Kong received remittances through bank worth Rs.85-90 lacs during the year 1986 but did number supply or ship any goods for which the invoices were supposed to have been issued. Some of the documents are alleged to bear his signatures. We do number think it necessary to deal with the grounds in greater detail. The statements indicate that the offences in respect of which the detenu is accused of are, in language of Mukharji, J., in Suraj Pal Sahu v. State of Maharashtra, 1986 4 SCC 378, so interlinked and companytinuous in character and are of such nature that they fully justify the detention order. In the circumstances, we do number doubt the satisfaction of the detaining authority specifically recorded in paragraph 41 of the grounds. It was also urged on behalf of the petitioner that since the prayer for bail made on behalf of the petitioner was number opposed on behalf of the respondents before the Additional Chief Metropolitan Magistrate, it must be held that this detention was number called for. Reliance was placed on paragraph 6 of the judgment in Ramesh Yadav v. District Magistrate, Etah, 1985 4 SCC 232. The learned companynsel is number companyrect in interpreting the observation of this Court relied upon by him as laying down a principle for general application. The Bench while companysidering the merits of the case before it, made the remark in the background of the facts and circumstances of the case. Having regard to the circumstances arising in the case before us, numbersuch inference is permissible to be drawn in favour of the petitioner. Besides, according to the respondents, the bail application was as a matter of fact opposed. In any view of the matter, this factor is number of much companysequence in the facts of the present case. In the result, both the writ application and the Special Leave Petition are dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 523 NT of 1975. From the Judgment and Order dated 31.1.1974 of the High Court of Kerala in Tax Reference Case No. 52 of 1971. S. Krishnamurthy Iyer and P.K. Pillai for the Appellant. Vishwanath Iyer and N. Sudakaran for the Respondent. The Judgment of the Court was delivered by KANIA, J. This is an appeal against a judgment of a Division Bench of the High Court of Kerala under the provisions of the Kerala General Sales Tax Act, 1963 and Tax Reference Case No. 52 of 1971 filed pursuant to special leave granted by this Court. The Appellant before us is the M s Alwaye Agencies and the respondent is the Dy. Commissioner of Agricultural Income-tax and Sales Tax, Ernakulam. The assessee firm was appointed as Distributor by the Travancore Cochin Chemicals Ltd. referred to hereinafter as the said companypany to effect the sale of Sodium Hydrosulphite manufactured by the said companypany in the area companyered by the Kerala State under an agreement entered into on 11th February, 1967. The dispute pertains to the transactions which took place between 1st September, 1967 and 20th December, 1968 since it is an undisputed that the transactions upto the former date are number taxable. It is companymon ground that the relations between the parties were governed throughout by the said agreement and that the parties adhered to the terms of the said agreement. In view of this it would be desirable to examine that agreement at this stage. As aforesaid, the agreement is dated 11th February, 1967. Under the agreement, the assessee firm was appointed as Distributor for the aforesaid product manufactured by the companypany for the area companyered by the Kerala State. Clause 2 of the agreement provides that the distributorship was on an exclusive basis giving the distributor the right of sale of the product within the aforementioned area and that supplies would be made only direct to the distributor, Sub clause a of clause 2 further provides However, when on the advice of the distributor bulk supplies are effected in waggon-load or lorry-load lots the Company may effect supplies direct to the companysumer, provided that the distributor arranges the payment as per the clause hereinafter mentioned and also takes the responsibility to bear entirely the resultant effects and risks from effecting such direct despatches. Sub-clause b of the said clause provides that the companypany reserves the right to effect the sale of Sodium Hydrosulphite to anybody and anywhere in India direct. Under Clause 4, the price which the distributor would be entitled to charge to the companysumer was fixed by the companypany and it was provided that the distributor will sell the materials to the clients or companysumers at the said price plus certain companyts incurred by the distributor. Cluase 6 provides that the said companypany would grant the distributor a rebate of 3 on the ex-factory selling price, which the companypany was entitled to determine as aforesaid. This rebate was liable to be paid to the distributor only at the end of the month when the statement of the account would be settled. Under Clause 7, the distributor was liable to guarantee the minimum off take of the said product. Clause 8 of the agreement provides for mode of payment by the assessee distributor to the said companypany, and very briefly stated, it provides that the assessee would arrange for effecting payment either in cash or by Demand draft payable at par, or, alternatively, would open an irrevocable letter of credit in favour of the said companypany negotiable against R R or other documents of despatch of goods. It is provided that the letter of credit would companyer the value of goods as well as charges of transport for booking the goods to destination station, Sales tax and other expenses including companyt of insurance, if any, effected at the distributors request. An alternative mode of the payment is provided to the effect that the assessee as distributor must remit 10 of the full value by Demand Draft and retire the documents of despatch of goods sent to the assessee through bank for companylection from the bank. Clause 8 further provides if the documents sent by the said companypany are number retired within the stipulated time, interest would be payable by the distributor on the amount due at the rate of 12 per annum. The clause also makes it clear that if the second mode of payment is adopted by the assessee, companysignments would be insured by the said companypany against transit risk and the insurance charges would have to be borne by the assessee. It may be numbered at this stage that the Tribunal has found as a fact that in respect of the said transactions from 1st September, 1967 to 20th December, 1968, the invoices were prepared by the said companypany in the names of the companysumers of goods and the goods were companysigned to the destinations through public carriers booked self. The transport bills were endorsed and handed over by the said companypany to the assessee. From 20th December, 1968, goods were companysigned to the destination showing the assessee as companysignor. But we are number companycerned with the period from 20th December, 1968. In the assessment of the assessee for the period 1967-68 under the Kerala General Sales Tax Act, 1963, the final assessment was initially companypleted on 27th September, 1968 and a turnover of Rs.70,952.61 as reported by the assessee was accepted and tax levied on that basis. Thereafter, it was alleged by the Assessing Authority that the transactions in the aforesaid period, which had taken place in the manner set out earlier, had been wrongly excluded from the turnover reported by the assessee in the return and hence that turnover has escaped assessment. The companytention of the assessee that these transactions did number companystitute sales by the said companypany to the assessee was number accepted and hence it was held by the Assessing Officer that the said turnover was liable to be included in the taxable turnover of the assessee, as escaped turnover. An appeal preferred by the assessee to the Appellant Assistant Commissioner was dismissed. In a Second Appeal to the Tribunal, the Tribunal took the view, by majority, that the aforesaid transactions had taken place directly between the said companypany and the companysumers and the assessee was merely an agent of the companypany in respect thereof. The Tribunal allowed the appeal and directed the aforesaid transactions to be excluded from the taxable turnover of the assessee. On a revision to the High Court under Section 41 of the said Act, the Division Bench of the High Court took the view that the Tribunal was wrong in companying to the companyclusion that the assessee was acting only as an Agent in respect of the aforesaid transactions between the said companypany and the companysumers and allowed the Revision Application. The Division Bench of the High Court companysidered several cases which were cited before the Division Bench and held that the test to determine whether there is a sale or number is to find out whether there is transfer of property. It further pointed out that the question whether there has been transfer of property must necessarily depend upon an appreciation of the rights and obligations of the parties under the companytract. If the property is transferred, unless there is a specific stipulation to the companytrary, any risk of loss or injury to the goods would, thereafter, be number in the seller but in the buyer. They further pointed out that the delivery may be either to the distributor himself or to his numberinee the numberinee companyld be the person whose orders are booked by the distributor. They pointed out that in the present case even when the goods were despatched by the said companypany to the address of the customers, whose orders were booked by the distributor, namely, the assessee, the documents of title were number delivered to the customers, but handed over to the distributor on receipt of price, or the documents of title were endorsed in favour of the distributor and sent through the banks to be honoured by the distributor by payment. In such cases, where there was some time-lag between the despatch of goods and the entrustment of documents of title on receiving payment through the bank, care was taken to stipulate that the risk would be companyered by insurance which would be at the companyt of the distributor. The Division Bench further pointed out that in the said agreement, the distributor had number been referred to as Agent but as Distributor and that this was also significant although number companyclusive. It was on the basis of these companyclusions that the High Court reversed the decision of the Tribunal and allowed the Revision Application. In our opinion, since both the parties have proceeded on the footing that the transactions in question were effected pursuant to the said agreement, the primary task to which we must address ourselves is to examine whether under the agreement the assessee firm was an agent of the said companypany, or whether the assessee firm was really a purchaser of the goods which were booked by it. In this companynections, it must be numbericed that under sub-clause a of Clause 2 provides that the distributor has the right of the sale of the product within the stipulated area. Bulk supplies were effected in waggon-load or lorry-load by the said companypany direct to the companysumer, but only provided that the distributor arranged the payment as per the agreement and also took the responsibility to bear entirely the resultant effects and risk from said direct despatches. It is true that the price at which the goods were to be sold to the customers was fixed by the companypany but that itself does number necessarily lead to the companyclusion that the assessee acted merely as an agent of the said companypany. In fact, it is well settled that the mere fact that the manufacturer fixes the sale price, by itself, cannot lead to the companyclusion that the distributor is merely an agent. It is significant that under the agreement what the distributor got is described as a rebate and number as companymission, as one would numbermally expect in an agreement of agency. This is a factor which is by numbermeans companyclusive, but to a certain extent indicative of the relationship between the said companypany and the assessee. What is most important is, however, that the supplies were made to the distributor against payment either immediate or deferred as provided in the agreement, and even when the goods were destined directly to the customer, it was the distributor who had to guarantee to arrange the payment. Clause 8 makes it quite clear that the arrangement for effecting payment had to be made by the distributor either in case of by demand draft or by irrevocable letter of credit in the companypanys favour negotiable against R R or other documents of despatch of goods. It is also significant that where there was some time lag between the sending of the goods and the payment, the goods were to be insured at the companyt of the assessee. This circumstance, in our opinion, clearly shows that in respect of the goods dispatched under orders placed by the distributors, the distributors really acted as purchasers of the goods which they in turn sold to the customers and did number merely act as agents of the said companypany. In respect of the goods in question which were despatched through public carriers, although the invoices were prepared in the names of the companysumers of the goods, and the goods were companysigned to the destination through public carrier booked to self, as pointed by the Tribunal and the bills were endorsed and handed over to the assessee. When companysidered in the light of the agreement, these circumstances clearly shows that in respect of these transactions the property in the goods dispatched passed to the distributor on the bills being endorsed and handed over to the distributors. Our attention was drawn by Shri Krishnamurthy Iyer, learned companynsel for the assessee appellant to the decision of this Court in The Bhopal Sugar Industries Ltd. v. Sales Tax Officer, Bhopal, 1977 3 S.C.C. p. 147 where the question was whether the companytract was one of agency or sale. This Court held that the question will have to be determined having regard to the terms and recitals of the agreement, the intention of the parties as may be spelt out from the terms of the document and the surrounding circumstances and having regard to the companyrse of dealings between the parties. While interpreting the terms of the agreement, the Court has to look to the substance rather than the form of it. The mere fact that the word agent or agency is used or the words buyer and seller are used to describe the status of the parties companycerned is number sufficient to lead to the irresistible inference that the parties did in fact intend that the said status would be companyferred. We are in companyplete agreement with the principles laid down in this decision. We may point out that although we have referred to the assessee being described in the agreement as distributor and number as agent and to the fact that what they got was described as rebate and number companymission, we have number treated these circumstances as in any manner decisive. In our view, however, these descriptions companysidered in the light of the general tenor of the agreement and the circumstances surrounding the transactions between the parties show that the assessee was number agent, but really a purchaser from the companypany in respect of the goods in question. Learned companynsel for the appellant also drew our attention to a passage in Pollack Mullas Commentary on the Sale of Goods and Partnership Acts, 4th Edition at page 114 where the learned authors have cited with approval the statement of Lord Justice Cotton to the effect that when the vendor on shipment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevent the purchaser from ever asserting any right of property therein. Lord Justice Cotton observed that in such cases the purchaser had numberproperty in the goods, though he had offered to accept bills or had paid the price. These observations, however, in our view, have numberapplication to the case before us, because in the case before us, although the goods were companysigned to the self, the documents relating to the despatch of goods, namely R R or other documents of title were endorsed in favour of the assessees and handed over to them on payment or were sent to the assessees through the bank for companylection. We may mention that it was urged by learned companynsel for the respondent,in the alternative, that, although sub- section 21 of Section 2 of the Kerala General Sales Tax Act defines sale in a manner similar to the definition of the said term under the Sale of Goods Act, Explanation 5 to sub- section 21 of Section 2 provides that two independent sales or purchases shall, for the purposes of that Act, be deemed to have taken place in the circumstances set out in that explanation. A perusal of the said explanation shows that such independent sales or purchases take place, inter-alia, where the goods are transferred from a principal to his selling agent and from the selling agent to the purchaser. It was submitted by him that in view of this explanation, even ifthe appellant firm was merely the agent of the said companypany in respect of the transactions in question, there were two sales which must be deemed to have taken place in respect of each of the transactions for the purposes of the said Act one from the said companypany to the appellant and the other from the appellant to the respective companysumer and that the sale from the said companypany to the appellant was liable to be included in the taxable turnover of the assessce.In ourview, it is number necessary to companysider this submission, because, according to us, in view of the said agreement, companysidered in the light of the surrounding circumstances, the assesseeas distributor was number an agent of the said companypany in respect of the transaction in question, but was the pur- chaser and hence the transactions were liable to be included in the turnover of the assessee. In the result, we find that there is numbermerit in the appeal and the appeal must stand dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 80 of 1981. From the Judgment and Order dated 10.7.80 of the Allahabad High companyrt in Civil Miscellaneous W.P.No. 5661 of 1979. Manoj Swarup for the Appellant. K. Bagga for the Respondent. The Judgment of the Court was delivered by VENKATACHALIAH, J. This appeal, by special leave, by the tenant arises out of and is directed against the Judgment dated 10.7.1980 of the Allahabad High Court in Civil Misc. Writ Petition No. 5661 of 1979 rejecting the appellants challenge to of the decrees of ejectment granted in favour of the third respondent-landlord on the ground that there was a denial of the title of the landlord within the meaning, and for purposes, of Section 3 1 f of the Uttar Pradesh Temporary Control of Rent and Eviction Act, 1947 Act III of 1947 . The appeal raises a short question whether, in the circumstances of the case, there was a disclaimer on the part of the appellant of the landlords title, so as to incur forfeiture of the tenancy. The necessary and material facts may briefly be stated The premises in question, i.e. No. 7/3, Shambhoo Barracks, Allahabad, originally belonged to a certain Shambhoo Lal Jain. Shamboo Lal died in the year 1943 leaving behind him his widow Rajul Devi his two sons, Dayachand and Dhoomchand and a daughter Mainavati. Dayachand, it is stated, went away in adoption to the family of one Banvarilal, a brother of Shamboo Lal. Pursuant to and in execution of a money-decree obtained by the said Mainavati against her brother Dhoomchand, she brought the said premises for sale and claimed to have purchased the same at a Court-sale on 21.5.1956. Mainavati, thereafter, companyveyed the property by sale in favour of a certain Gopinath Agrawal. Appellant who was in occupation of the premises as a tenant even prior to the sale attorned the tenancy in favour of the purchaser Gopinath and came to pay the rents to Gopinath accordingly. Gopinath, in turn, sold the property in favour of Chhaya Gupta, the third respondent herein. Both the vendor-Gopinath and the purchaser-Chhaya Gupta issued numberices to the appellant to attorn the tenancy in favour of the purchaser, Chhaya Gupta. But appellant-tenant declined to do so and assailed number only the derivative title of the third-respondent to the property but also the validity of the sale in favour of Gopinath himself. The provocation for the denial on the part of the appellant of the third respondents title was this It would appear that in a separate litigation which culminated in the judgment dated 6.7.1971 of the Allahabad High Court in First Appeal No. 260 of 1968 between the said Mainavati on the one hand and a certain Chamanlal on the other, it was held that what Mainavati had acquired under the execution sale of 24.4.1956 was number the totality of all rights and interests in the property, but was only such right, title and interest as the judgment- debtor, i.e. Dhoomchand, had and that the Court-sale did number companyvey to Mainavati the interest of Rajul Devi, the widow of Shamboolal Jain. It was also held that Chamanlal who obtained a decree against both Dhoomchand and the estate of Shamboolal would, numberwithstanding the sale in favour of Mainavati, be entitled to bring the residuary interests in the same property for sale in his execution. Appellant sought to raise this defect in Mainavatis title. But the point to numbere, however, is that the appellant had attorned the tenancy in favour of Gopinath Agarwal, paid rents through-out the period during which Gopinaths interest subsisted. The question was whether despite this attornment, the appellant companyld assail Gopinaths title. Appellant sought to assert that the sale in favour of Gopinath was void and companyveyed numberhing. This act, on the part of the appellant, of denial and disclaimer of the title was the foundation of the proceedings in ejectment. The High Court, dismissing the appellants writ petition, has upheld the order of ejectment made by the Courts below. We have heard Shri K.B. Asthana, learned Senior Counsel for the appellant and Shri B.D. Aggarwal, learned Senior Counsel for the companytesting third-respondent. The point that Shri Asthana sought to put across was that the High Court was in error in its view that the stand taken by the appellant in his reply dated 3.4.1972 amounted in law to a denial of title of the land-lord and that, at all events, the view of the High Court on the scope of a tenants estoppel was clearly untenable. Learned companynsel submitted that the estoppel of a tenant does number go so far as to bar him from questioning the derivative title of an assignee of the reversion or from companytending, as here, that, in addition to the particular person claiming to be the successor or assignee of the reversion, there were also others who were companyowners of the reversion. On the first aspect, learned companynsel submitted that where a tenant requires from the person, claiming to be assignee or successor-in-interest of the reversion, proof of the vestitive facts on which the claim rests or where the tenant alleges that the reversion vested number exclusively in the person so claiming, but in a body of companyowners, there was numberdisclaimer of the position of the tenant as tenant. On the second aspect, learned companynsel submitted that estoppel of a tenant is in respect of, and companyfined to, the title as at the time the tenant was inducted or let-into possession, that appellant companyld yet show that the attornment made in favour of Gopinath Agarwal, from whom the third respondent claims, was in ignorance of the full facts and the result of fraud and mis-representation, and that under these circumstances, appellants acknowledgment of Gopinath Agarwal as the landlord, would number debar him from companytending that Gopinath himself was number the full owner, but had acquired only an undivided share and interest in the property. The law as to estoppel of a tenant under Section 116 of the Evidence Act is a recognition, and statutory assimilation, of the equitable principles underlying estoppel in relation to tenants. The section is number exhaustive of the law of estoppel. The section, inter-alia, predicates that numbertenant of immovable property shall, during the companytinuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property. Referring to the reason underlying this branch of the doctrine of estoppel Marton B said Cuthberton v. Irwing, 28 LJ Ex. 306 . This state of the law in reality tends to maintain right and justice and the enforcement of companytracts which men enter into with each other-for so long as a lessee enjoys every-thing which his lease purports to grant how does it companycern him that the title of the lessoris? Shri Asthana may be right in his submission that a tenant who, without disclaiming his own position as tenant, however, seeks proof of title from an alleged assignee of the reversion cannot be held to have denied the landlords title. It may also be true that the estoppel of a tenant is primarily in relation to his landlord who had let him into possession and that, accordingly, such tenant is number precluded from questioning the alleged derivative title of a person claiming to be the successor to, or assignee of, the reversion, for want of proof of the vestitive facts on which the claim for attornment is based. The rule of estoppel does number also preclude a tenant from companytending that the landlords title has since terminated by transfer or otherise or has been lost or defeated by title-peramount. In English case law there was some authority for the proposition that the tenant was only estopped from denying his landlords title only if at the time he took the lease from the landlord he was number already in possession of the land. In Kumar Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd. and Ors., AIR 1937 PC 251 the judicial companymittee numbericed this companytention thus The defendant companypany companytended before the High Court that the section only applies where it is shown that the landlord put the tenant into possession of the property, and that when a person already in possession of land becomes tenant to another there is numberestoppel against his denying his lessors title However, it was held There is in English case law some authority for the view that a tenant is only estopped from denying his landlords title if at the time when he took his lease he was number already in possession of the land. But in Section 116, the Indian Legislature has formulated numbersuch companydition. The words at the beginning of the tenancy give numberground for it. When a demise of land is made and acted on, when the tenant proceeds to occupy and enjoy under the grant, gets the shelter of the grantors title and the benefit of his companyenants, it is difficult to see why during the companytinuance of the tenancy he should be free of this form of estoppel. Tenant who has occupied but number entered is a difficult numberion to thrust into Section 116 and quite impossible to find therein. In the present case the plea of the landlord is that the general principles of estoppel preclude the tenant from denying the title of the person to whom he has attorned. In Kumar Krishna Prasads case their Lordships observed The principle does number apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversions, though in such cases there may be other grounds of estoppel e.g., by attornment, acceptance of rent etc. The section does number deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside Section 116 altogether emphasis supplied In regard to the effect of attornment Spencer Bower on Estoppel says Where a tenant, with full knowledge of the facts, either expressly in writing, or impliedly by acts, such as the payment of rent, attorns tenant to a person other than his original landlord or one who is claiming the estate or interest of such original landlord by assignment, succession, or otherwise, he is ordinarily estopped from questioning the title of the person to whom he has so attorned. But, here too, it is open to the party sought to be estopped to explain away the attornment, and so escape the estoppel to which is would otherwise be subject, by proof that, when he so attorned, he was labouring under mistake or ignorance as to material facts affecting the title of the person to whom he attorned, particularly if such error or ignorance was due to the fraud of that person. emphasis supplied Estoppel by Representation by Spencer Bower Turner-III Edn. The companycurrent findings of facts in this case-it is indeed a matter of admission of the appellant-that ever- since the purchase by Gopinath Agarwal the appellant attorned the tenancy in his favour and paid rent to him. Appellant did number establish that there was misrepresentation on the part of Gopinath or mistake on the part of the appellant misleading appellant into this attornment. High Court observes In the companyrts below, an attempt was made to get over the effect of the defendant having attorned to Gopinath Agrawal by trying to demonstrate that the attornment was as the result of fruad and mis-representation practised by Gopinath Agrawal. Both the Courts below have rejected this plea, which is undisputably purely one of fact. Counsel for the petitioner made numberattempt to show that the said finding of the companyrts below is wrong. Now, Section 3 1 f which refers to one of the grounds for eviction under the Act envisages f that the tenant has renounced his character as such or denied the title of the landlord and the latter has number waived his right or companydoned the companyduct of the tenant There can be a denial of the title of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of Jus-tertii. The stance of the appellant against the third-respondents title was number on the ground of any infirmity or defect in the flow of title from Gopinath, but on the ground that the latters vendor- Mainavati herself had numbertitle. The derivative title of the third-respondent is number denied on any ground other than the one that the vendor, Gopinath-to whom appellant had attorned-had himself numbertitle, the implication of which is that if appellant companyld number have denied Gopinaths title by virtue of the inhibitions of the attornment, he companyld number question third-respondents title either. Appellant did himself numberservice by this stand. It must, accordingly, be held on both the aspects companytended-for by Shri Asthana that what appellant did, indeed, amounted to a denial of title and that appellant was precluded from doing so on the general principles of estoppel between landlord and tenant. The principle, in its basic foundations. means numbermore than that under certain cricumstances law companysiders it unjust to allow a person to approbate and reprobate. Having regard to the circumstances of this case and the findings of fact recorded by the High Court it appears to us to be a clear case which attracted the grounds under Section 3 1 of the Uttar Pradesh Temporary Control of Rent and Eviction Act, 1947 Act 3 of 1947 . The view taken by the High Court does number call for interference.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2756 of 1987. From the Judgment and Order dated 2.9.1986 of the Madhya Pradesh High Court in C.M.P. No. 742 of 1985. N. Khare and T.C. Sharma for the Appellants. K. Gambhir for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. The Ist respondent Ashok Deshmukh was appointed as a Panchayat and Social Education Organizer in the Social Welfare Department, Government of Madhya Pradesh, Bhopal on 16.8.1976. By an order dated 11th March, 1983 he along with 13 others was posted on deputation as an officiating Block Development Officer in the Panchayat and Rural Development Department of the Government of Madhya Pradesh. The relevant portion of the said order, posting the Ist respondent on deputation, read as follows GOVERNMENT OF MADHYA PRADESH PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT DEVELOPMENT Bhopal, dated 11th March, 1983 O R D E R Serial Number 1719/1463/22V-2/82. The following Panchayat and Social Education Organisers are appointed on the post of officiating Block Development Officer, temporarily and on deputation, from the date of taking charge in the pay scale of Rs.350-25-400-25-500 E.B.-30- 650 until further orders and they are posted in Development Block shown against their names. This posting on deputation would be entirely temporary and they would number be entitled to become semi- permanent or permanent on this post. If required their services may be transferred back to their parental department at any time, after numberice. Name of Panchayat Name of Development No.and Social Educational block where posted Organiser 1 2 3 1 Shri Ashok Deshmukh Kurwai Vidisha In the name and according to the order of Governor of Madhya Pradesh. Sd - A.K.Chandra Secretary, Govt. of M.P. Rural Development Department The Ist respondent was transferred from the post of Block Development Officer, Kurwai, in Vidisha district which he was holding on deputation as aforesaid to the Development Block of Udaipura. District Raisen by an order dated August 1, 1983. On 29th June, 1984 the services of the Ist respondent were placed at the disposal of his parent department by an order made by the Secretary to the Government, Panchayat and Rural Development Department, Madhya Pradesh. The said order read thus GOVERNMENT OF MADHYA PRADESH PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT DEVELOPMENT BHOPAL, DATED 29TH JUNE, 1984 ORDER No. 6297/1031/22/V-2/Est. 84. The services of Shri Ashok Deshmukh appointed temporarily on deputation as officiating Block Development Officer, Development Block-Udaipura, Distt. Raisen, are returned back to his parental department Social Welfare Department because the same are number required in this department. In the name and according to the orders of Governor of Madhya Pradesh. sd - Illegible Secretary Panchayat and Rural Development Department Development Aggrieved by the said order of the State Government sending him back to his parent department, where he held his lien, the Ist respondent filed a suit in Civil Suit No. 16A of 1984 in the Court of Civil Judge, Udaipura for permanent injunction restraining the Government of Madhya Pradesh from repatriating him to his parent department and he obtained an order of temporary injunction in that suit on 15.11.1984 restraining the State Government from relieving him from the post of Block Development Officer at Udaipura and directing the State Government to allow him to companytinue as the Block Development Officer. After the State Government entered appearance in the suit and filed its objections to the order of temporary injunction, the Civil Judge vacated the order of temporary injunction by his order dated 15.3.1985. Thereafter the Ist respondent filed a writ petition on the file of the High Court of Madhya Pradesh at Jabalpur requesting the High Court to quash the order of repatriation in Miscellaneous Petition No. 742 of 1985. After the writ petition was admitted and a stay order was issued the Ist respondent withdrew the suit filed by him before the Civil Judge, Udaipura. Thereafter the High Court heard all the parties and passed an order dated 2.9.1986 quashing the order of repatriation dated 29.6.1984 sending back the Ist respondent to his parent department and directed the State Government to retain him as officiating Block Development Officer on deputation in the Panchayat and Rural Development Department so long as persons junior to the Ist respondent were retained as Block Development Officers and there existed a vacancy. The High Court also quashed the order of the State Government dated 20.5.1985 directing the Ist respondent to vacate the Government quarter which had been occupied by him and also the order of suspension which had been passed in the meanwhile. The High Court also directed the State Government to pay all the salary due to the Ist respondent as Block Development Officer. Aggrieved by the order of the High Court the State Government along with its officers against whom orders were made by the High Court has filed this appeal by special leave. In the writ petition two principal companytentions were urged on behalf of the Ist respondent i that the order of repatriation was companytrary to rule 14 of the Madhya Pradesh Civil Services Rules, hereinafter referred to as the Rules , and ii the order of repatriation was arbitrary and was the result of bias and mala fide attitude on the part of Smt. Nirmala Buch, Secretary, Panchayat and Rural Development Department. The High Court held that the order of repatriation had been passed in violation of rule 14 of the Rules and that although there was numbermaterial on record to support the allegation of any bias and mala fides on the part of Smt. Nirmala Buch the order of repatriation was the result of certain wrong companyplaints made by one Panbai who was a Member of the Legislative Assembly of the state of Madhya Pradesh. Rule 14 of the Rules is as follows Reversion and re-appointment Permanent Government servants officiating in a higher grade of service may be reverted to the lower grade of service from which they were promoted if there are numbervacancies in the former grade of service, and such reversion shall number be companystrued to be a reduction in rank Provided that the order in which such reversion shall be made will be the reverse of the order in which officiating promotion was made except when administrative companyvenience renders it necessary to revert an officiating Government servant otherwise than in accordance with this proviso Provided further that on the occurrence of a fresh vacancy the re-appointment to the higher grade of service shall ordinarily be in order of relative seniority of the reverted Government servant. The above rule deals with the question of reversion of a permanent Government servant from an officiating higher grade of service to the lower grade of service from which he had been promoted. This rule in terms does number apply to a case of deputation from one department to another department. Admittedly the Ist respondent had number been promoted from the post of Panchayat and Social Education Organiser which he held in the parent department to a higher post in the said department. He had been, in fact, posted on deputation as officiating Block Development Officer in the Panchayat and Rural Development Department. The High Court was, therefore, in error in holding that the impugned order of repatriation had been passed in violation of rule 14 of the Rules. It is, however, argued that even in the case of an officer who is deputed on a temporary basis to a post in another department the same procedure prescribed in rule 14 of the Rules should be followed. It is also submitted that there is numberspecific rule as to the procedure to be followed in the case of repatriation of an officer deputed from one department to another in force in the State of Madhya Pradesh. Reliance is, however, placed in this companynection on the decision of this Court in K.H. Phadnis v. State of Maharashtra, 1971 Suppl. S.C.R. 118 which was also a case in which the question of repatriation of an officer, who had been posted on deputation in another department, to his parent department was under companysideration. This Court has observed thus at page 123 The order of reversion simpliciter will number amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal companysequence. Therefore though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be companysidered in ascertaining whether the order is a genuine one of accident of service in which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will number be a stigma. On the other hand, if there is evidence that the order of reversion is number a pure accident of service but an order in the nature of punishment, Article 311 be attracted. In the above case this Court came to the companyclusion that the impugned order of repatriation was in fact in the nature of punishment and therefore this Court quashed it. Thiraviam Pillai v. State of Kerala and others, 1976 2 S.L.R. 395 was a case relating to repatriation of an officer who was reverted to his parent department from the post which he held on deputation. The High Court of Kerala quashed the order or repatriation since in the companynter affidavit filed on behalf of the State Government it had been admitted that the order impugned therein had been passed since there were local companyplaints about the work in the block and instances where the officer in question had misused his powers and acted irregularly had been cited. The Block Development Officer had to maintain very close companytact with the public. The post required persons of broad outlook and service-mindedness. The State Government felt that the companytinuance of such an officer would bring down the name of the Development Department in the eyes of the public and so in the interests of service and the department, Government companysidered that he should be reverted back to his parent department. It is thus seen that the above averment clearly established that the order of repatriation had been passed on account of allegations made against the officer companycerned and it carried a stigma. Moreover in the above case the relevant rule provided that persons selected for the post of Block Development Officers would be treated on deputation to the Development department for a period of five years, the Development Commissioner having the right to revert any of them to his parent department, if his work proved to be unsatisfactory and to extend the period of deputation beyond five years in exceptional cases. In the case before us numberspecific period had been mentioned as the period during which the Ist respondent would be on deputation either in the order sending him on deputation or in any relevant rule or Government order. The only question which remains to be companysidered is whether the impugned order is one which attached a stigma to the Ist respondent. The allegations made in this behalf are that one Panbai, MLA referred to above had when the petitioner was at Kurwai made companyplaint against the Ist respondent in companynection with certain local elections. The said companyplaint was after enquiry found to be wrong. On the date on which the Ist respondent was repatriated he was number working in Kurwai block which was the block in which Smt. Panbai was interested. He was working at Udaipura block in a different district altogether. The respondents had filed companynter- affidavit denying that Smt. Nirmala Buch, the Secretary to the Government of Madhya Pradesh had any ill-will against the Ist respondent. The High Court also came to the companyclusion that there was numbermaterial on record to show that there was any bias or mala fide on the part of Smt. Nirmala Buch. Yet it proceeded to observe as follows Although there is numbermaterial on record to support the allegations of any bias and mala fide on the part of Smt. Nirmala Buch, the Secretary, Panchayat and Rural Development Department, but the wrong companyplaints of the said M.L.A. appear to be the only basis for passing the impugned order of reversion as well as the order of transfer of the petitioner who had incurred the displeasure of his superiors because of the said reports which were found to be incorrect. With respect to the High Court it has to be stated that having observed that there was numbermaterial to support the allegation of any bias and mala fide on the part of the Secretary to the Government it companymitted an error in assuming that the basis of impugned order of repatriation companyld only be the displeasure of his superiors which the Ist respondent had incurred by reason of the wrong companyplaints of a Member of the Legislative Assembly. It is significant that the order is silent about the names of those superiors who were displeased on account of the allegations said to have been made by the Member of the Legislative Assembly. This part of the order of the High Court is based on mere surmise. The High Court overlooked that the allegations of bias and mala fides are easily made but when it companyes to the question of proof of such allegations, very often there will be numbermaterial in support of them. This is one such case. If mere existence of some allegations against an officer which on inquiry had been found to be untrue is to be treated as the basis for quashing any order of transfer or repatriation made in respect of any officer then almost every such order of transfer or repatriation would have to be quashed because there would always be some companyplaint by some party or other against every officer. Unless the companyrt is sure that the impugned order is really based upon such allegations it should number proceed to quash administrative orders which are made in the exigencies of the administration. The companynter-affidavit filed on behalf of the State Government before the High Court also shows that some other officers who had been posted on deputation like the Ist respondent also had been reverted to their parent department and again some of them had been posted back as Block Development Officers. Perhaps even in the case of the Ist respondent a similar order posting him back as Block Development Officer would have been passed by the State Government had he number filed the suit and then the writ petition making it difficult for the State Government to take a decision on the question of again posting him as a Block Development Officer during the pendency of the proceedings. The impugned order of repatriation passed in respect of the Ist respondent does number on the face of it show that there is any stigma attached to the Ist respondent by reason of the said order. We are clearly of the opinion that the allegations of bias and mala fides made against Smt. Nirmala Buch have remained unsubstantiated. The Ist respondent had numbervested right to companytinue on deputation as Block Development Officer. On the material placed before us we do number find that the order of repatriation is arbitrary and violative of Article 14 of the Constitution. We, therefore, find it difficult to agree with the High Court. The order passed by the High Court is therefore liable to be set aside. It is quite possible that the Ist respondent may again be sent on deputation as Block Development Officer. That, however, is within the discretion of the State Government. In view of what we have stated above we have number companysidered it A necessary to decide the question whether the Ist respondent companyld proceed with the writ petition after having withdrawn the suit which he had filed earlier in the Court of Civil Judge, Udaipura. In the result we set aside the judgment and order of the High Court and dismiss the writ petition filed by the Ist respondent.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 619 NT of 1975. From the Judgment and Order dated 11.7.1973 of the High Court of Madras in Tax Case No. 2 of 1970. Mohan for the Appellant. Rajendra Choudhary for the Respondent. The Judgment of the Court was delivered by KANIA, J. This is an appeal against the companymon judgment of a Division Bench of the High Court of Judicature at Madras in Tax Cases Nos. 2 3 of 1970. The appeal has been preferred pursuant to special leave granted by this Court under Article 136 of the Constitution of India. The facts giving rise to the appeal are as follows The Dharangadhara Chemical Works Ltd. is a manufacturer of Caustic Soda and certain other chemicals. Dharangadhara Chemicals Works Ltd. referred to hereinafter as the Chemical Company entered into an agreement dated 9th August, 1957 under which it agreed to sell all its products to Dharangadhara Trading Co. Pvt. Ltd. referred hereinafter as the Trading Company . Under clause 1 of the said agreement, the Chemical Company agreed to companyfine the sale of all the products manufactured by it at all its works to the Trading Co. for a period of 5 years from the 1st day of March, 1958. Clause 2 of the agreement provided, the Chemical Co. would make the sales directly to the Trading Co. on a principal to principal basis against offers or indents. Clause 3 provided that the selling price would be determined by the Board of Directors of the Chemical Co. on the basis of ex-factory or F.O.R. at booking or F.O.R. destination stations as decided upon by the Directors. The delivery of the goods would, however, be given F.O.R. at booking stations. The Trading Co. would make payments to the Chemical Co. within one month from the date of supply or sale of goods by the Chemical Co. Pursuant to this agreement, sales were effected by the Chemical Co. to the Trading Co. Although the aforesaid agreement companytained the general terms as set out earlier, neither the booking stations, number the destination stations number the sale price were given in the said agree- ment. The Trading Co. used to given directions to the Chemical Co. for despatching specified quantities of goods to the stations named by the Trading Co. and as per these directions, the Chemical Co. booked the goods at the booking station which was invariably Arunuganeri Railway Station in the State of Tamil Nadu, showing themselves as the companysignors and the Trading Co. as the companysignees of the goods specified in that companytract of sale. After booking the goods, the invoices were handed over to the Trading Co. by the Chemical Co. It may be mentioned that the actual quantities sold, the sale price, the booking station and the destination stations were number determined under the aforesaid agreement of 9th August, 1957, but in the actual companytracts of sale in respect of definite or specified quantities. The mode in which sales were made was that the Trading Co. obtained orders from out of State buyers and entered into agreement of purchase with the Chemical Co. for these specified quanities. All the goods sold under these companytracts of sale were booked at the aforesaid railway station in Tamil Nadu to the various places outside the State of Tamil Nadu where buyers from the Trading Co. required the goods and after the goods were booked as aforesaid on the railway, the railway receipts and the invoices companycerned were endorsed and handed over to the Trading Co. Admittedly, as pointed out by the Tribunal, there were two sets of sales, one by the Chemical Co. to the Trading Co. and the second by the Trading Co. to the various out of State buyers. In the original assessment order for the assessment year 1961-62 made by the Sales Tax Officer, both the sales by the Chemical Co. to the Trading Co. and the sales by the Trading Co. to the out State buyers were treated as inter-State sales. Consequently, Central Sales- tax was levied on the first sale, but number on the second sale. This assessment order was revised and under the revised assessment order the assessing authority treated the sales effected by the Chemical Co. to the Trading Co. as intra-State sales and the sales effected by the Trading Co. to the out of State buyers as inter-state sales falling under Section 3 of the Central Sales Tax Act, 1956. The assessees, namely, the Chemical Co. as well as the Trading Co. filed appeals before the Appellate Assistant Commissioner companytending that both the said sales were inter- state sales. It was companytended by the assessee that the sales by the Trading Co. to the out of State purchasers were admittedly inter-state sales and as far as sales by the Chemical Co. to the Trading Co. were companycerned, these were also inter-state sales as the sales were companypleted by the delivery of railway receipts and invoices only after the inter-state journey of the goods had companymenced. These companytentions were rejected by the Appellate Assistant Commissioner, who dismissed the appeals. Both the assessees filed appeals against the decisions of the Appellate Assistant Commissioner to the Tribunal. The Tribunal allowed both the appeals. The Tribunal pointed out that there were two sets of sales, the second set of sales by the Trading Co. to out of State buyers was admittedly inter-state in character. The Trading Co. had filed necessary E-1 forms and C forms in these cases and the transactions, therefore, fell within the scope of Section 6 2 B of the Central Sales Tax Act and were exempt from tax under local Sales Tax Act as well as the Central Sales Tax Act. As far as first set of sales, namely, by the Chemical Co. to Trading Co. were companycerned, it was pointed out that although under the agreement dated 9th August, 1957 the sales were agreed to be F.O.R. Booking Stations and the booking station was in Tamil Nadu, the delivery of goods companyld be either by physical delivery or by handing over documents of title. The delivery companytemplated in the agreement was number actual physical delivery, as the place of delivery was neither sellers place of business, number the buyers place of business. Considering the manner in which the sales were effected and despatches made by the Chemical Co., and after examining some specimen orders placed by the Trading Co. with the Chemical Co., the Tribunal came to companyclusion that the delivery was effected by the Chemical Co. to the Trading Co. by delivery of documents of title, namely, the respective invoices and the railway receipts. The nature of sales by the Chemical Co. to the Trading Co. and the question whether they were inter- state sales had to be decided after further taking into account the further instructions given by the buyers. The actual terms of the sales have to be determined number merely under the agreement dated 9th August, 1957 as that agreement was a general agreement which did number specify the quantities to be sold, the sale price, booking stations, the destination stations, and so on, but these actual terms companyld be determined only by taking into account the terms on which and the manner in which the actual sales were made by the Chemical Co. to the Trading Co. For ascertaining these terms, the Tribunal examined some of the subsequent orders placed by that Trading Co. on the Chemical Co. Taking into account all these, the Tribunal found that as the orders were placed for booking, specified goods to out of station buyers, and the Chemical Co. never give physical delivery of the goods to the Trading Co., but booked the goods to the destinations as required by the out of state buyers and merely handed over documents of title to the Trading Co. It was clear that the movement of the goods from the State of Tamil Nadu to the outside States was occasioned by the terms of the companytract themselves and the sales were inter-state sales falling within Section 3, Sub- section a of the Central Sales Tax Act, 1956. Alternatively, if a view were taken that the sales did number fall under Sub-section a of Section 3, the deliveries of goods sold were effected by the transfer of documents after the movement of the goods from Tamil Nadu to the other States had companymenced and the sales companyld be regarded as companyered under Sub-section b of Section 3 of the Central Sales Tax Act. From this decision of the Tribunal, Revision Petitions under Section 38 of the Tamil Nadu General Sales Tax Act were preferred by the State of Tamil Nadu to the Madras High Court. The High Court upheld the views of the Tribunal and dismissed both the Revision Petitions which were numbered as Tax Cases Nos. 2 and 3 respectively. An appeal was preferred by the State in the case of the Trading Co., namely, the case pertaining to the assessment of the sales from Chemical Co. to the Trading Co. The only submission advanced by Mr. Mohan, learned, companynsel for the appellant, was that there were two sets of sales, namely, by the Chemical Co. to the Trading Co. and by the Trading Co. to the out of State buyers. It was submitted by him that the first set of sales, namely, by the Chemical Co. to the Trading Co. were local or intrastate sales because under the agreement dated 9th August, 1957 the delivery was to be effected at the booking station. In our view, as the Tribunal has rightly pointed out, the agreement dated 9th August, 1957 is merely a general agreement and the actual terms of the companytracts of sales as well as the instructions of the out of state buyers have to be taken into account in determining the nature of the sales in question. In view of this, the companyclusions arrived at by the Tribunal as well as the High Court that the sales by the Chemical Co. to the Trading Co. were inter-state sales cannot be faulted and the learned companynsel for the appellant has number advanced a single reason showing how that companyclusion is incorrect. In fact, this companyclusion finds some support from the observations of this Court in Union of India Anr. K. G. Khosla Co. P Ltd. Ors., 1979 3 S.C.R. 453 at p. 460. In the result, we find that there is numbermerit in the appeal and it must fail. The appeal is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 783 NM of 1987. From the Judgment and Order dated 9.3.87 of the High Court of Patna in C.W.J.C. No. 608 of 1983. Soli J. Sorabjee, Ravinder Narain, S. Ganesh, Laxmi Kumaran, P.K. Ram and D.N. Mishra for the Appellant. Govind Das, C.V.S. Rao and A. Subba Rao for the Respondents. The Judgment of the Court was delivered by KANIA, J. This is an appeal by the Tata Iron and Steel Co. Ltd. referred to hereinafter the Tisco against the judgment of a Division Bench of the Patna High Court in Writ Petition filed by the Tisco. The Writ Petition was filed by the Tisco for quashing an order passed by the Collector, Central Excise, Patna on 24th September, 1982. The Division Bench of the Patna High Court in the impugned judgment only granted partial relief to the Tisco and the appeal in respect of the relief refused. The relevant facts are follows The appellant manufactures inter alia wheels, tyres and axles of rail ays. The buyers of these products are the Indian Railways. Apart from this, the appellant also makes and supplies to the Indian Railways wheel and exles as companyposite units. These are forged products. Before the said goods are supplied to the railways the said goods after being forged are machined and polished by the appellant and as a result of this machining and polishing the excess layer of steel which is companymonly referred as excess skin is removed and one of the disputes is as to whether for the purpose of Item 26AA ia of the Central Excise 1027 Tariff set out in the First Schedule to the Central Excises and Salt Act, 1944 referred to hereinafter as the Central Excises Act the weight of the steel should be calculated as at the time when the forging was companyplete or after machining and polishing to remove the excess skin of steel. Certain other incidental work on the said goods might have been done by the appellant, but that is number material for our purposes. The stand of the appellant was that these items were dutiable in their hands only once and under Tariff Item No. 26AA ia . The companytention of the revenue was that in the hands of the appellant they were liable to duties at two stages, namely, under Tariff Item No. 26AA ia when they were forged and under Tariff Item No. 68 of the Excise Tariff after they were machined and polished for being supplied to the railways. Right from 1962, the appellant was filing classification lists showing these goods as liable to excise duty only under Tariff Item No. 26AA ia and this classification list submitted by the appellant was accepted and approved by the excise authorities. In 1981, the Asstt. Collector, Central Excise, Jamshedpur who is one of the respondents before us by a show-cause numberice dated 16.5.1981 called upon the appellant to show cause why it should number be proceeded against for companytravention of Rule 173-B, 9 i read with rule 173 G i and rule 173 i a . The ground was that the goods supplied by the appellant to the railways were number forged items as such, but the said goods after they had undergone machining and polishing after being forged and had been turned into distinct companymercial companymodities by the process of machining and polishing which amounted to manufacture and hence the goods were also liable to the payment of excise duty as set out in Item 68. The numberice also called upon the appellant to show cause as to why duty on the forged goods under Tariff Item No. 26AA ia should number be payable on the footing of the weight of the goods as forged and before the removal of the excess skin by the machining. The appellant by their letter dated 27th May, 1982 replied to the said numberice taking up the stand that the process of forging of the goods companyld be said to be companypleted only after machining and polishing and that this was required to be done in order to bring the goods in line with the specifications of the Indian Railways. The said letter addressed to the Collector inter alia pointed out that all the wheels, tyres and axles had to be rolled and machined by the appellant to make them companyform to the Indian Railways standard denominations. However, all wheels, tyres and axles supplied by the appellant were further precision machined and fine polished at the railway workshop 1028 that this further machining at the railway workshop, is a must before the said articles companyld be put to use by the railways and hence the machining by the appellant did number amount to manufacture. A companyy of the letter is number on record, but there is a clear reference to it in the order passed by the Collector imposing excise duties as aforesaid. The Collector rejected the stand of the appellant and held that the apellant was liable to pay differential duty under item 26AA ia on the difference between weight of the said goods when forged and the weight after machining to remove the excess skin as well as the duty under Tariff Item No. 68 as set out earlier. The Collector further held that the appellant was liable to penalty of Rs.1 lac under Rule 173Q of the Central Excise Rules, 1944 for suppression of facts or giving misleading particulars. The Collector took the view that the appellant was guilty of mis-statement of suppression of facts and hence the period of limitation for making the demand was 5 years prior to the service of the show cause numberice. The Division Bench of the Patna High Court accepted the companyclusions of the Collector save and except that they took the view that there was numbersuppression or mis- statement of facts on the part of the appellant and hence the period of limitation would be only 6 months prior to the service of the show-cause numberice. Before proceeding further, we would like to set out the relevant items from the Central Excise Tariff. The relevant portion of Item 26AA of the Central Excise Tariff, at the relevant time read as follows with emphasis supplied 26AA. Iron or steel products, the following, namely, ia Bars, rods, companyls wires, joists, girders, angles, other than slotted angles, channels, other than slotted channels, tees, beams, zeds, trough, piling and all other rolled, forged or extruded shapes and sections, number otherwise specified. Item 68 of the Excise Tariff is the residury item and it ran as follows All other goods, number elsewhere specified, but excluding a alcohol, all sorts, including alcoholic liquors for human companysumption 1029 b opium, Indian hemp and other narcotic drugs and narcotics and c dutiable goods as defined in section 2 c of the Medicinal and-Toilet Preparations Excise Duties Act 1955 16 of 1955 . There is an explanation to Item 68, but the same is number relevant for our purpose. A perusal of these items makes it clear that forged steel products are liable to duty in terms of Tariff Item No. 26AA. It is also beyond dispute that forged steel goods with which we are companycerned would be companyered by Tariff Item No. 26AA ia which includes forged or extruded shapes and sections, number otherwise specified. It is companymon ground that the appellant is liable to pay excise duty on the said goods under Tariff Item No. 26AA ia . The dispute in this companynection is what is the stage at which the said goods companyld be said to be forged iron and steel products as companytemplated in the said item whether they companyld be regarded as such as soon as they are forged or after machining and polishing to remove the excess skin before being supplied to the Indian Railways. The stand of the appellant is that this machining and polishing which is done in its workshop, is number significant character and extensive precision machining and polishing has to be done by the railway at their workshop before the wheels, tyres and axles supplied by the appellant can be attached to the rolling stock. The machining and polishing done in the workshop of the appellant was only in the nature of shaping by removing the superficial material to bring the forged items upto with the Railways specifications. A perusal of Item 26AA would show the excise duty on forged goods companyered under the said entry, is according to the weight of the goods. It was companytended by the appellant that the weight should be measured only after the polishing and machining at the appellants workshop was companypleted. It is obvious that as a result of such machining and polishing there would be some loss weight on account of excess skin removal. It was on the other hand companytended on behalf of the Revenue, the respondent herein, that the forging of the goods was companyplete before the machining and polishing was done to remove the excess surface or excess skin. It appears to us that the aforesaid companytention of the appellant deserves to be accepted. Even to prepare forged goods for supplying to the Railways, it was essential that the goods should companyply with the Railways specifications and the excess steel on the surface or the excess skin as it is called, would have to be removed for that purpose. 1030 Moreover, as pointed out by learned single judge of the Delhi High Court, in Metal Forgings Pvt. Ltd. Anr. v. Union of India Ors., 1985 20 E.L.T. p.280 at paragraph The process of manufacture of forged products companysists of cutting of steel, pre-heating of material, heating and beating of steel material till final shaping is achieved. The steel forging process involves open forging process where the quantity small and drop close die forging and or upset forging process under which the product is made with the help of dies. Thereafter, the extra unwanted material is removed by either trimming or by gas cutting or by skin cutting to achieve the shape and section nearest to the forged steel product required and also the forging clearances specified in the standards by I.S.I. or International. It is companyceded by the Government that forging would number cease to be forging by processes like removal of superfluous extra skin of cast iron. The learned judge has further pointed out in the next paragraph of the said judgment that the removal of extra unwanted surface steel by either trimming or by gas cutting or by skin cutting of the forged products must be regarded as incidental or ancillary to the process of manufacture. This view is also companysistent with the definition given to the term manufacture companytained in Sub- section f of section 2 of the Central Excises and Salt Act, 1944. This definition shows that the manufacture includes any process incidental or ancillary to the companypletion of a manufactured product. We are, therefore, of the view that in respect of the said goods the weight for the purpose of levy of excise duty under Item 26AA ia should be taken after the machining and polishing is done to remove the excess surface skin and the companytention of the appellant in this regard must be accepted. The next question is, whether, as a result of the polishing and machining done by the appellant on the said goods before supplying them to the railways the same were transformed into new companymercial companymodities, namely, finished axles, wheels, tyres and so on or whether these finished or manufactured goods which companyld be regarded as distinct companymercial products came into existence only after precision machining done at workshops of the Indian Railways to enable the Railway to put these goods to use to meet the actual requirments of the Railways. It is number the case of the respondent that there were three distinct sets of goods, namely, one the forged steel pro- 1031 ducts, two the manufactured goods supplied by the appellant to the Railways and three, the finished goods as turned out from the Indian Railways workshops for being used by the Railways. It must be regarded as companymon ground that duty under Item No.26AA was payable on the forged products and duty under Tariff Item No. 68 was payable only at the stage of the companypletion of the manufacture of the finished goods, namely, axles, wheels, tyres and so on. The certificate issued by A.K. Malhotra, Additonal Director, Railways Stores clearly states that the goods supplied by the appellant to the Indian Railways and manufactured at its plant at Jamshedpur are manufactured according to specifications and drawings agreed to between the parties. Axles are supplied to the railways in rough machined companydition and wheels, tyres and blanks are supplied in as rolled as forged companydition. These wheels tyres, axles and blanks have to be sometimes rough machined partially to remove excess steel or manufacturing defects. These products are subsequently precision machined by the Railways at their workshops before being put to use to meet the actual requirements of the Railways. There is numberchallenge to the companyrectness of this certificate either before the Collector or before the Trial Court and there is numberreason as to why it should number be taken as companyrect. The certificate clearly shows that axles supplied by the appellant to the Railways were in rough machined companydition and wheels, tyres and blanks were supplied in rough or forged companydition. Sometimes wheels, tyres, axles and blanks had to be even rough machined partially at the Railways workshop to remove excess steel or manufacturing defects. All these products had to be subsequently precision machined by the Railways before being put to use. In these state of affairs, it is quite clear that the finished goods, namely, finished wheels, tyres, axles and blanks companyld be said to have companye into existence only after the precision machining and other processing at the Railways workshops was companypleted and the appellant is number liable to pay any duty on these goods as under Item No. 68 of the said Central Excise Tariff. We may make it clear that what we have said in the foregoing paragraphs is applicable to all the goods with which we are companycerned save and except wheels, tyres and axles manufactured by the appellant and supplied as companyposite units. In respect of these companyposite units, it is beyond dispute, and it is companyceded by the appellant, that it is liable to pay duty on the same under Tariff Item No. 26AA ia as well as under Tariff Item No. 68. The only companytention in this companynection is as regards the question of limitation to which we shall presently companye. 1032 Regarding the question of limitation, the dispute is whether, assuming that the demand made by the Collector was valid, what is the period to which it companyld relate, it being companymon ground that as far as companyposite units companyprising wheels, tyres and axles supplied by the appellant to the Indian Railways are companycerned the demand under Item No. 68 of the Central Excise Tariff was justified. The question here is as to whether that demand companyld extend only to six months prior to the service of the show cause numberice as companytended by the appellant or upto a period of five years prior to that numberice as companytended by the respondent. In this regard, Section 11-A is the relevant provision. The said Section has been amended in 1978, but we are number companycerned with that amendment. A perusal of Sub-section 1 of that Section shows that where any duty of excise has number been levied or short levied or short paid or erroneously refunded, the Central Excise Officer companycerned may, within six months from the relevant date, serve numberice on the person chargeable with that duty. This provision would clearly show that the period for which the demand companyld be made was only six months prior to the service of the numberice. Now, in the present case, it has been found by the High Court and, in our opinion, rightly that there was numbersuppression or mis-statement of facts or fraud by the appellant to which the alleged short levy or number-levy companyld be attributed. In fact, it is companymon ground that right from 1962 the appellant was filing classification lists companytaining the description of the items and showing them as liable to the payment of excise duty only under Item No. 26AA ia and these lists were accepted and approved by the excise authorities. In these circumstances, we fail to see how it companyld be said that the appellant was guilty of any suppression or mis-statement of facts or companylusion or violation of the provisions of Central Excises Act as companytemplated under the proviso to Section 11-A of the said Act. In view of this, the period of limitation would clearly be only six months prior to the service of the show cause numberice. The demand for excise duty against the appellant on the said companyposite units under Item No. 68 of the Excise Tariff, to the extent that it exceeds the period of six months prior to the service of the show cause numberice must, therefore, be struck down. In our view, the learned judges who delivered the impugned judgment were in error in taking the view which they took on the questions discussed aforesaid, except regarding limitation. The learned judges have placed companysiderable reliance on the new classification of the Tariff Items in 1985 in companysidering the true scope of Item No. 26AA and Item No. 68 as they stood in 1981. In our opinion, this reliance was misplaced. 1033 In the result, the appeal is allowed. The appellant is liable to pay duty on the goods referred to in the petition other than the companyposite units only under Item No. 26AA ia of the First Schedule to the Central Excises Act and the duty will be based on the weight after the machining carried out in the factory of the appellant to remove the excess skin or excess surface steel. Secondly, in respect of the companyposite sets, the appellant is liable to pay duty both under Items Nos.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 177 NL of 1984. From the Judgment and order dated 5.9.1983 of the High Court of Bombay in Special Civil Application No. 59 of 1983 Dr. Y.S. Chitale and V.N. Ganpule for the Appellant. B. Pai, Parveen Kumar and Vivek Ghambir for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. The short question which arises for companysideration in this case is whether a teacher employed in a school falls within the definition of the expression workman as defined in section 2 s of the Industrial Disputes Act, 1947 hereinafter referred to as the Act . The appellant, Miss A. Sundarambal, was appointed as a teacher in a school companyducted by the Society of Franciscan Sisters of Mary at Caranzalem, Goa. Her services were terminated by the Management by a letter dated 25th April, 1975. After she failed in her several efforts in getting the order of termination cancelled she raised an industrial dispute before the Conciliation officer under the Act. The companyciliation proceedings failed and the Conciliation officer reported accordingly to the Government of Goa, Daman and Diu by his letter dated 2nd May, 1982. On receipt of the report the Government companysidered the question whether it companyld refer the matter for adjudication under section 10 1 c of the Act but on reaching the companyclusion that the appellant was number a workman as defined in the Act which alone would have companyverted a dispute into an industrial dispute as defined in section 2 k of the Act, it declined to make a reference. Thereupon, the appellant filed a writ petition before the High Court of Bombay, Panaji Bench, Goa for issue of a writ in the nature of mandamus requiring the Government to make a reference under section 10 1 c of the Act to a Labour Court to determine the validity of the termination of her services. The said writ petition was registered as Special Leave Application No. 59 of 1983. That petition was opposed by the respondents. After hearing the parties companycerned, the High Court dismissed the writ petition holding that the appellant was number a workman by its judgment dated 5th September, 1983. Aggrieved by the judgment of the High Court, the appellant has filed this appeal by special leave. Two questions arise for companysideration in this case 1 whether the school, in which the appellant was working, was an industry, and 2 whether the appellant was a workman employed in that industry. It is, however, number disputed that if the appellant was number a workman numberreference under section 10 1 c of the Act companyld be sought. The first question need number detain us long. In University of Delhi Anr. v. Ram Nath, 1964 2 S.C.R. 703 a bench companysisting of three learned judges of this Court held that the University of Delhi, which was an educational institution and Miranda House, a companylege affiliated to the said University, also being an educational institution would number companye within the definition of the expression industry as defined in section 2 j of the Act. Section 2 j of the Act states that industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. Gajendragadkar, J., as he then was who decided the said case, held that the educational institutions which were predominantly engaged in teaching companyld number be companysidered as industries within the meaning of the said expression in section 2 j of the Act and, therefore, a driver who was employed by the Miranda House companyld number be companysidered as a workman employed in an industry. The above decision came up for companysideration in Bangalore Water Supply Sewerage Board, etc. v. R. Rajappa others, 1978 3 C.R. 207 before a larger bench of this Court. In that case the decision in University of Delhi Anr. v. Ram Nath, supra was overruled. Krishna Iyer, J. who delivered the majority judgement observed at Page 283 of the Report thus Where a companyplex of activities, some of which qualify for exemption, others number, involves, employees on the total undertaking, some of whom are number workmen as in the University of Delhi case or some departments are number productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, will be true test. The whole undertaking will be industry although those who are number workmen by definition may number benefit by the status. The learned Judge, however, observed that while an educational institution was an industry it was possible that some of the employees in that industry might number be workmen. At page 261 of the Report with reference to the case of University of Delhi Anr. v. Ram Nath, supra the learned Judge observed thus The first ground relied on by the Court is based upon the preliminary companyclusion that teachers are number workmen by definition. Perhaps, they are number, because teachers do number do manual work or technical work. We are number too sure whether it is proper to disregard, with companytempt, manual work and separate it from education, number are we too sure whether in our technological universe, edu- cation has to be excluded. However, that may be a battle to be waged on a later occasion by litigation and we do number propose to pronounce on it at present. The Court, in the University of Delhi, proceeded on that assumption viz. that teachers are number workmen, which we will adopt to test the validity of the argument. Thus it is seen that even though an educational institution has to be treated as an industry in view of the decision in the Bangalore Water Supply Sewerage Board, etc. v. R. Rajappa others, supra the question whether teachers in an educational institution can be companysidered as workmen still remains to be decided. Section 2 s of the Act defines workman thus 2 s . workman means any person including an apprentice employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in companynection with, or as a companysequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does number include any such person who is subject to the Army Act, 1950 46 of 1940 , or the Air Force Act, 1950 45 of 1950 , or the Navy Discipline Act, 1934 34 of 1934 or who is employed in the police service or as an officer or other employee of a prison or who is employed mainly in managerial or administrative capacity or who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. In order to be a workman, a person should be one who satisfies the following companyditions i he should be a person employed in an industry for hire or reward ii he should be engaged in skilled or unskilled manual, supervisory, technical or clerical work and iii he should number be a person falling under any of the four clauses, i.e., to iv mentioned in the definition of workman in section 2 s of the Act. The definition also provides that a workman employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward includes any such person who has been dismissed, discharged or retrenched in companynection with, or as a companysequence of, an industrial dispute, or whose dismissal, discharge or retrenchment has led to that dispute. We are companycerned in this case primarily with the meaning of the words skilled or unskilled manual, supervisory, technical or clerical work. If an employee in an industry is number a person engaged in doing work falling in any of these categories, he would number be a workman at all even though he is employed in an industry. The question for companysideration before us is whether a teacher in a school falls under any of the four categories, namely, a person doing any skilled or unskilled manual work, supervisory work, technical work or clerical work. If he does number satisfy any one of the above descriptions he would number be workman even though he is an employee of an industry as settled by this Court in May and Baker India Ltd. v. Their Workmen., 1961 II L.L.J. 94. In that case this Court had to companysider the question whether a person employed by a pharmaceutical firm as a representative for canvassing orders whose duties companysisted mainly of canvassing orders and any clerical or manual work that he had to do was only incidental to his main work of canvassing companyld be companysidered as a workman as defined in the Act. Dealing with the said question Wanchoo, J. as he then was observed thus As workman was then defined as any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward. Therefore, doing manual or clerical work was necessary before a person companyld be called a workman. This definition came for companysideration before industrial tribunals and it was companysistently held that the designation of the employee was number of great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical, then the person must be held to be a workman. On the other hand if manual or clerical work is only a small part of the duties of the person companycerned and incidental to his main work which is number manual or clerical, then such a person would number be a workman. It has, therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or number, under the definition of that work as it existed before the amendment of 1956. The nature of the duties of Mukerjee is number in dispute in this case and the only question therefore is whether looking to the nature of the duties it can be said that Mukerjee was a workman within the meaning of S. 2 s as it stood at the relevant time. We find from the nature of the duties assigned to Mukerjee that his main work was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing and companyld number take more than a small fraction of the time for which he had to work. In the circumstances the tribunals companyclusion that Mukerjee was a workman is incorrect. The tribunal seems to have been led away by the fact that Mukerjee had numbersupervisory duties and had to work under the directions of his superior officers. That, however, would number necessarily mean that Mukerjees duties were mainly manual or clerical. From what the tribunal itself has found it is clear that Mukerjees duties were mainly neither clerical number manual. Therefore, as Mukerjee was number a workman, his case would number be companyered by the Industrial Disputes Act and the tribunal would have numberjurisdiction to order his reinstatement. We, therefore, set aside the order of the tribunal directing reinstatement of Mukerjee along with other reliefs. The Court held that the employee Mukerjee involved in that case was number a workman under section 2 s of the Act because he was number mainly employed to do any skilled or unskilled manual or clerical work for hire or reward, which were the only two classes of employees who qualified for being treated as workman under the definition of the expression workman in the Act, as it stood then. As a result of the above decision, in order to give protection regarding security of employment and other benefits to sales representatives, parliament passed separate law entitled the Sales Promotion Employees Conditions of Service Act, 1976. It is numberdoubt true that after the events leading to the above decision took place section 2 s of the Act was amended by including persons doing technical work as well as supervisory work. The question for companysideration is whether even after the inclusion of the above two classes of employees in the definition of the expression workman in the Act a teacher in a school can be called a workman We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post graduate education cannot be called as workmen within the meaning of section 2 s of the Act. Imparting of education which is the main function of teachers cannot be companysidered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a numberle vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court for taking the view that teachers cannot be treated as workmen as defined under the Act. It is number possible to accept the suggestion that having regard to the object of the Act, all employees in an industry except those falling under the four exceptions i to iv in section 2 s of the Act should be treated as workmen. The acceptance of this argument will render the words to do any skilled or unskilled manual, supervisory, technical or clerical work meaningless. A liberal companystruction as suggested would have been possible only in the absence of these words. The decision in May and Baker India Ltd. v. Their Workmen, supra precludes us from taking such a view. We, therefore, hold that the High Court was right in holding that the appellant was number a workman though the school was an industry in view of the definition of workman as it number stands. We may at this stage observe that teachers as a class cannot be denied the benefits of social justice. We are aware of the several methods adopted by unscrupulous managements to exploit them by imposing on them unjust companyditions of service. In order to do justice to them it is necessary to provide for an appropriate machinery so that teachers may secure what is rightly due to them. In a number of States in India laws have been passed for enquiring into the validity of illegal and unjust terminations of services of teachers by providing for appointment of judicial tribunals to decide such cases. We are told that in the State of Goa there is numbersuch Act in force. If it is so, it is time that the State of Goa takes necessary steps to bring into force an appropriate legislation providing for adjudication of disputes between teachers and the Managements of the educational institutions. We hope that this lacuna in the legislative area will be filled up soon. This appeal, however, fails and it is dismissed. Before we company- clude we record the statement made on our suggestion by the learned companynsel for the Management, Shri G.P. Pai that the Management would give a sum of Rs 40,000 to the appellant in full and final settlement of all her claims. The learned companynsel for the appellant has agreed to received Rs 40,000 accordingly. We direct the Management to pay the above sum of Rs 40,000 to the appellant in six instalment. They shall pay Rs 6,000 on 1.9.1988, Rs 6,000 on 1.10.1988, Rs 6,000 on 1.11.1988, Rs 6,000 on 1.12.1988, Rs 6,000 on 1.1.1989 and Rs 10,000 on 1.2.1989.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISD1CTION Civil Appeal No. 1743 1744 of 1973. From the Judgment and order dated 9.5 1972 of the Rajasthan High Court in D.B. Civil Special Appeal No 110 of 1972. Badri Das Sharma for the Appellant. L. Sanghi and A.K. Sanghi for the Respondents in C.A. No. 1743/1973. K. Jain, Bishambar Lal, P. Dayal and A.D. Sangar for the Respondents in C.A. No 1744/1973. The Judgment of the Court was delivered by THAKKAR, J The High Court having struck down the Notification dated January 29, 1970 issued by the Central Government authorising the levy and companylection of royalty on limestone at Rs.1.25 per tonne, the State of Rajasthan which was recovering royalty at the aforesaid rate under the Mines and Minerals Regulation and Development Act, 1957 Act has approached this Court by way of these two allied appeals by special leave. The impugned Notification has been struck down by the High Court on the ground that the Central Government had enhanced the rate of royalty by virtue of the said Notification in disregard of the statutory embargo embodied in clause b of the proviso to Section 9 3 of the Act which prohibits enhancement more than once during any period of four years. S.9-Royalties in respect to mining leases. The Central Government may. by numberification in the official Gazette amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may he specified in the Notification Provided that the Central Government shall numbere a xxx Enhance the rate of royalty in respect of any mineral more than once during any period of four years. The companytention of the respondents original Writ Petitioners in A the High Court was that enhancement by amending the schedule companyld be effected only once within four years of the earlier enhancement. The interpretation canvassed by them referred to as Writ Petitioners hereafter was that the expression during any period of fol r years would mean during the block of four years Commencing from the last date on which the enhancement was made. This interpretation was accepted by the High Court Now this Court in D.K. Trivedi Sons and ors. v. State of Gujarat Ors. etc., 1986 Suppl. Supreme Court Cases 20 has interpreted this very expression in a provision which is in puri-materia as prohibiting enhancement of royalty in respect of any mineral more than once during any period of four years companymencing from the date of the enforcement of the Rules. In other words while the High Court has taken the view that the point of companymencement of the period of embargo must begin with effect from the date on which the last enhancement was made, this Court has taken the view that the four year period of embargo must companymence from the date of the companymencement of the Rules. And that further enhancement can be made only once during the subsequent block of four years so companyputed. Of companyrse in D.K. Trivedis case this Court was companycerned with an analogous provision in the Gujarat Rules. But the problem of interpretation was identical namely whether the four-year block would companymence from the date of enforcement of the Rules or whether each block would companymence from the date of last enhancement. Madon,J. speaking for the Court has resolved the companytroversy in the passage extracted hereinbelow As the Gujarat Rules have been amended from time to time by the impugned numberifications so as to enhance or reduce the rate of royalty or dead rent or both, it is necessary at this stage before turning to the Gujarat Pules to companysider what the expression during any period of four years occurring in the proviso to Section 15 3 mean It is pertinent to numbere that the words used in the proviso are shall number enhance the rate of royalty for more than once during any period of four years. This is a wholly different thing from saying that where the rate of royalty has been enhanced once it shall number be enhanced again for a period of four years or, in other words until a period of four years from the date of such enhancement has expired. The period of four years for this purpose must be and can only be reckoned from the date of companyning into force of the rules and it is open to a State Government to enhance the rate of roy- alty or dead rent at any time during the period of four years from the companying into force of the ruIes and after each period of four years expires at any time during each succeeding period of four years. The Gujarat Rules came into force on April 1, 1966 Therefore, in the case of Gujarat Rules the first period of four years would be April 1, 1966 to March 31, 1970, the second period would be April 1, 1970 to March 31, 1974, the third period would be April 1, 1974 to March 31, 1978, the fourth period would be April 1, 1978 to March 31, 1982, the fifth would be April 1, 1982 to March 31, 1986 and so on thereafter Thus, during any of these periods of four years both dead rent and royalty can be enhanced by the Government of Gujarat but only once during each such period. Emphasis added Thus the question regarding interpretation is numbermore res- integra. Applying the law as declared by this Court in Trivedis case supra an enhancement in the rate of royalty can be effected once in the successive four-year blocks succeeding on the heels of the first four-year block companymencing from June 1, 1958 and expiring on 31st May, 1962. In other words the rate of royalty companyld have been lawfully enhanced once during each of the four-years blocks specified hereunder viz 1.6.1962 to 31.5.1966 1.6.1966 to 31.5.1970 1.6.1970 to 31.5.1974 The rates of royalty were however revised in the manner indicated hereafter. During the first block of four years that is to say from 1.6.1958 to 31.5.1962 the rate of royalty on limestone was fixed at Rs. 0.75 per tonne subject to a rebate on extractions made by recourse to a particular process froth flotation method During the second block of four years companymencing from 1.6.1962 to 31.5 1966, numberchange was effected in the rate of royalty. In the third block companymencing from 1.6.1966 to 31.5.1970, the Central Government issued a numberification dated 1.7.1968 whereby the rate of royalty in respect of limestone was again revised. The relevant entry reads thus Limestone Superior grade with 45 or more CaO Rs.1.25 per tonne. Inferior grade with less than 45 CaO Rs.0.75 per tonne On January 29, 1970 in the same block of four years companymencing from 1.6.1966 to 31.5.1970, the Central Government issued another numberification, the impugned Notification dated January 29, 1970 whereby the distinction between the two grades of limestone was abolished and rate of royalty was fixed at Rs.1.25 per tonne. This was achieved by substituting the entry pertaining to royalty leviable on limestone by an entry in the following terms Limestone-Rs.1.25 per tonne. The change effected by the impugned Notification vis-a- vis earlier Notification is better companyprehended when the entries are juxtaposed as under First and second Thirdfour-year four-year Blocks Block 1966-70 1958-62 1962-66 Date of Notification 29-6-68 29-1-70 Rate of royalty fixed Rs.0.75 per a Superior for limestone tonne subject grade to a rebate of with Rs.0.38 per tonne 45 or on limestone more beneficiated CaO by froth float- Rs.1.25 ation process. per tonne. Limestone Rs.1.25 Inferior per grade tonne. with less than CaO- Rs.0.75 per tonne. In the net result the position which emerges is this The Writ Petitioners were paying royalty at Rs.0.75 per tonne subject to a rebate which was granted on the extraction being made by recourse to a particular process till the third four year block companymencing on June 1, 1968. Thereafter by virtue of the Notification dated June 29, 1968 the petitioners had to pay royalty at Rs.0.75 per tonne for the inferior grade limestone but the rebate was discontinued. Under the circumstances the Writ Petitioners companyplained that as a matter of fact enhancement was effected twice during the four-year block of 1966-70. It was companytended that by virtue of the Notification dated 29.6.1968 inasmuch as the rebate of Rs.0.38 per tonne which was hitherto being granted was withdrawn it companystituted the first enhancement during this block and inasmuch as the rate of royalty was again enhanced to Rs.1.25 per tonne persuant to the impugned Notification dated January 29 1970 it companystituted an enhancement for the second time in the same four-year block On these premises it was urged that the embargo engrafted by Section 9 3 b of the Act was violated by the impugned Notification and companysequently the said Notification was null and void. The High Court upheld the plea and came to the companyclusion that the second enhancement would be being enforced for the first time in the fourth four-year block companymencing from June 1, 1966. The learned Counsel for the appellant is, under the circumstances, perfectly justified in submitting that the High Court instead of striking down the Notification in toto companyld well have made the Notification unenforceable for a period of four months of the third four-year block expiring on 31st May, 1970, without prohibiting its enforcement even with effect from June 1, 1970 from which date the fourth four- year block companymenced, and the enhancement companyld have been made without any impediment in law. The High Court was exercising high prerogative jurisdiction under Article 226 and companyld have moulded the relief in a just and fair manner as required by the demands of the situation. The High Court companyld well have proceeded on the premise that the enhancement made pursuant to the Notification dated January 29, 1970 was unenforceable for the four months preceding June 1, 1970 on which date the enhancement companyld have been lawfully enforced pursuant to the Notification. Till then the Notification would have remained unenforceable for that limited period of four months during which the embargo would have been in operation. In our opinion, the enhancement was merely premature and number void in the sense that the enhancement companyld have been lawfully enforced with effect from June 1, 1970 and companyld number have been made enforceable on the date of the issuance of the Notification on 29th January, 1970. Such a Notifica- tion, in the eye of law, must be treated as dormant for the interregnum A of about four months till it becomes enforceable on June 1, 1970 upon the companymencement of the fourth four-year block. The enhancement was authorised by the Legislature. However, there was an embargo making it enforceable only once during the companyrse of the four-year block. It would be taking a super-technical view to hold that a fresh Notification companyld have been issued on June 1, 1970 and that the Notification issued on 29th January, 1970 should be quashed for all times numberwithstanding the fact that it was unenforceable only for the interregnum of four months and there was numberimpediment to its enforcement on the expiry of the third four-year block on 31st May, 1970. An illustration will make the point clear. The Writ Petitions giving rise to both the appeals were instituted after fourth four-year block which companymenced on 1.6.1970 and the embargo numberlonger subsisted. The effect of the impugned Notification was that it authorised the appellant to companylect royalty at the rate of Rs. 1.25 every day subsequent to the issuance of the Notification. For four months expiring on 31st May, 1970 the Writ Petitioners companyld successfully companytend that the enhancement cannot be enforced in view of the statutory embargo raised by proviso b to sub-section 3 of Section 9 of the Act. But from June 1, 1970 onwards this legal weapon of resistence was number available to the Writ Petitioners. They companyld number have sought shelter under the umbrella of proviso b to sub-section 3 of Section 9 of the Act, having regard to the fact that the enhancement was being enforced for the first time in the four-year block companymencing on June 1, 1970. Such being the position the just and fair order to pass would have been to restrain the appellant from enforcing the Notification for the interregnum between January 29, 1970 till 31st May, 1970, i.e. for about four months, instead of quashing the Notification. The learned Counsel for the Writ petitioners has however companytended that enforcement even subsequent to June 1, 1970 was number permissible in law. Insupport of this proposition reliance was placed on Mahendra Lal Jaini v. The State of Uttar Pradesh Ors, 1963 Suppl. 1 S.C.R. 912. We are unable to accede to this submission. In Mahendra Lal Jainis case supra this Court was dealing with a post- companystitutional legislation which was inconsistent with the fundamental rights companyferred by the Constitution of India and was accordingly rendered void by virtue of Art. 13 2 of the Constitution of India. It was in this companytext that the expression still born was used in regard to the impugned legislation. Of companyrse having regard to the companystitutional companymand embodied in Art. 13 2 numberState can make any law abridging the rights companyferred by part III of the Constitution of India and any such law made in companytravention of this clause would be void. As a matter of fact in Mahendra Lal Jainis case the doctrine of eclipse enunciated in Bhikaji Narain Dhakaras v. The State of Madhya Pradesh, 1955 2 C.R. 589 to the effect that the questioned law would remain dormant till the clout was removed whereupon it would become alive, has been approved. In the present case we are number companycerned with a piece of legislation which offends Art. 13 2 of the Constitution of India. It is therefore futile to companytend that the principle enunciated in Mahendra Lal Jainis case would justify striking down of the Notification for all times in future. As has been observed earlier the only vice in the impugned Notification is that the enhancement was authorized nearly four months too soon in advance. The enhancement companyld have been made with impunity without violating proviso b to sub-section 3 of Section 9 about four months later. The enhancement was therefore unenforceable only during this period of four months. It is number even disputed that the enhancement companyld have been lawfully made without any impediment on June 1, 1970. Inasmuch as it was made nearly four month too soon, on January 29, 1970, the enhancement would be unenforceable during this interregnum of approximately four months. During this period the Notification would have remained dormant. Under the circumstances the just and fair companyrse to adopt is to issue a Writ restraining the State of Rajasthan from enforcing the enhancement for the interregnum of about four months expiring on 31st May, 1970 instead of striking down the Notification in absolute terms for all times as has been done by the High Court. It would have become vibrant and enforceable with effect from June 1, 1970. There is absolutely numberwarrant or justification to restrain recovery at the enhanced rate for the period subsequent to June 1, 1970 numberwithstanding the fact that there is numberlegal bar under proviso b to sub-section 3 of Section 9 to give effect to the Notification with effect from that date. Under the circumstances we allow the appeals partly. The order passed by the learned Single Judge of the High Court quashing the impugned Notification dated January 29, 1970 as companyfirmed by the Division Bench of the High Court is set aside. In place thereof the State of Rajasthan is restrained from enforcing the impugned Notification till 31st May, 1970 with the clarification that the enhancement as per the said Notification authorising companylection of levy at Rs.1.25 per tonne would be enforceable with effect from June 1, 1970 onwards. Such amount as remains to be recovered in the light of this Judgment will have to be paid by the Writ petitioners on or before September 30, 1989. On failure of the Writ Petitioners to do so the appellant will be entitled to recover from them the sum representing the difference between the sum recoverable as per this Judgment and the sum Paid by the Writ Petitioners. We substitute the order in the aforesaid terms in place of the order passed by the High Court which we have set aside The appeals are partly allowed accordingly.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 238 of 1988. From the Judgment and Order dated 4.8.1986 of the Punjab and Haryana High Court in Criminal Appeal No. 329-DB of 1986 and Murder Reference No. 2 of 1986. Mrs. Urmila Kapoor and Ms. S. Janani for the Appellant. S. Suri for the Respondent. The Judgment of the Court was delivered by OJA, J. This appeal has companye to this Court on grant of leave against the companyviction of the appellant under Section 302 and sentence of death and also his companyviction under Section 201 IPC and sentence of 7 years rigorous imprisonment and fine of Rs.200 awarded by Sessions Judge, Ferozepur and companyfirmed by the High Court of Punjab Haryana. The appellant is companyvicted for having companymitted the murder of his father and son. It is alleged that deceased Banta Singh father of the present appellant owned 4-5 killas of land situated at Ferozepur Road where a tube well was also installed by the side of a samll kotha where he alongwith his grandson Seva Singh used to live away from the house where the appellant resided. It is alleged that Seva Singh was crippled and used to move about on a tricycle Banta Singh and Seva Singh used to go to Gurudwara of their village to render services. Banta Singh had only one son i.e. present appellant whereas the appellant had a son Seva Singh the deceased from his first wife since deceased . Later he married second time and had two children, but she also died. At present he has the third wife and with her, he has two sons. It was alleged, as motive for the offence, that the appellant used to quarrel with his father and son in companynection with land owned by father as the latter wanted to transfer his land in the name of Seva Singh who used to live with the grandfather. According to the prosecution a day prior to Amawasaya of Chet 1985 May 1985 when Nihal Singh PW 2 was rendering services with Banta Singh and Seva Singh at Gurudwara at about 5 p.m. the appellant went to the Gurudwara and told his father and son that in the evening a truck of Car Seva would companye from Fazilka and that they would go to Amritsar to take the holy bath. On this representation, appellant took Banta Singh and Seva Singh from the Gurudwara. It is alleged that on the same day at about 10 p.m. when Nihal Singh was proceeding to his fields for guarding his tubewell he met the accused on the way and found carrying dang with him. On being questioned by Nihal Singh as to why he was there and why he did number go to Amritsar, the appellant replied that Banta Singh and Seva Singh were sent to Amritsar by him in a truck of Car Seva. It is further alleged that when Nihal Singh did number see for sometime Banta Singh and Seva Singh he felt suspicious and lodged a report dated 10 October 1985 in the Police Station Mamdot. That became the FIR Ex. PG . I. Puran Singh who recorded the statement of Nihal Singh raided the house of the appellant who it is alleged was number present. On 13 of August 1985, it is alleged that the appellant made an extra judicial companyfession to one Amrik Singh and Amrik Singh produced the appellant before the Police. On 15 August, 1985, a memorandum under Section 27 of the evidence Act was recorded by the Investigating officer at the instance of the appellant and later the dead bodies of Banta Singh and Seva Singh were recovered from a field. It is also alleged that at that time there was a Jhinjan crop standing in the field. The dead bodies were identified by one Channan Singh who was a Panch witness. The tricycle and other articles were recovered from the Kotha at the instance of the appellant. On the basis of this evidence, the companyrts below companyvicted the present appellant. The circumstances which have been found against the appellant are i Last seen with the deceased at the Gurudwara by. Nihal Sing ii extra judicial companyfession made to Amrik Singh iii the statement under Section 27 leading to discovery of dead bodies and recovery of tricycle and other articles from the Kotha where the two deceased used to reside and the motive alleged against the appellant. Learned companynsel for the appellant companytended that as against the motive is companycerned. the appellant at the trial had produced a will A executed by deceased Banta Singh wherein he has given away all his lands to the appellant. In the cross examination of prosecution witnesses it was suggested that that his brother-in-law Manjit Singh was interested in getting the property transferred in his name or in his wifes name. It was also argued that extra judicial companyfession even otherwise is a very weak piece of evidence and in this case it is strange that the appellant chose this Amrik Singh to make an extra judicial companyfession and the reasons suggested by Amrik Singh also do number appear to be justifiable. Similarly it was said that the recovery of dead bodies and the memorandum of the statement leading to the discovery are of numberconsequence as even according to the Investigating officer he had learnt from Amrik Singh that the dead bodies were in the field but he felt that the information he had got was number sufficient and therefore he recorded the information under Section 27 given by the appellant. In our opinion, these companytentions are well founded and must be accepted as companyrect. The field where the bodies were recovered is an open place. It is alleged that there was Jhinjan crop standing in the field and prosecution has number led any evidence to indicate as to who was in possession of the field and who cultivated the crop which was standing at that time. We will discuss this part of the case in detail a little later. It is very significant to numbere that according to the medical opinion bodies were recovered about three months after the death. The bodies were found disintegrated. It was difficult to identify. The disintegration has gone to such an extent that the bodies companyld number be removed and sent for postmortem and therefore medical expert was called to the spot to perform the postmortem. The prosecution did number examine any one of the relatives or the daughter of deceased Banta Singh or the son-in-law Manjit Singh to identify the dead bodies although it has appeared in evidence that during the trial Manjit Singh was present in the Court. As to the extra judicial companyfession, it may be numbered that Nihal Singh claims to be a person who had seen the deceased Banta Singh and Seva Singh alongwith the appellant in the month of May in the Gurudwara. On the same night he again met the appellant and enquired about them. The witness also stated that when he did number see the old man for some time, he became suspicious about the missing of those two persons. This witness in order to justify his meeting with the appellant at 10 P.M. On that day said that although his own land was at a distance, he had taken some land on lease which was adjacent to the land of the appellant and so he had to go near the appellants house. But in cross examination he had to admit that for the lease he had numberdocument to support. The prosecution has suggested that the appellant did number search for his father, but according to the appellant, the deceased had been taken away by Manjit Singh to their place on the pretext that Manjit Singhs wife i.e. the appellants sister was number well and this was also put in cross examination to Nihal Singh. In the absence of evidence of Manjit Singh, the suggestion of the appellant cannot be brushed aside. On 10 August, 1985 F.I.R. was lodged by Nihal Singh PW-2 1 and on 13.8.85 the appellant went to Amrik Singh PW-3 to make an extra judicial companyfession. Amrik Singh says that the appellant told him that as the Police was after him he had companye and companyfessed the fact so that he might number be unnecessarily harrased. There is numberhing to indicate that this Amrik Singh was a person having some influence with the Police or a person of some status to protect the appellant from harrassment. In his cross- examination he admits that he is neither the Lumbardar or Sarpanch number a person who is frequently visiting the Police Station. He further admits that when he produced the appellant there was a crowd of 10 to 12 persons. There is numberother companyroborative evidence about the extra judicial companyfession. As rightly companyceded by the learned companynsel for the State that extra judicial companyfession is a very weak piece of evidence and is hardly of any companysequence. The companyncil however, mainly relied on motive, the evidence of last seen, the evidence of recovery of dead bodies and the companyduct of the appellant in number making a report about the missing father and son. As regards the motive the will in question is sufficient to dislodge it. An attempt was made by the learned companynsel for the State to suggest that even after the will the appellant companyld have done away with the old man to avoid changing the will. But the will was executed on 31 December, 1984 and it is a figment of imagination that the murder was companymitted apprehending that the will likely to be changed. There is also numberevidence to indicate that appellant was number having good relations with his father or that there was ever any trouble between father and the son. In fact Nihal Singh was asked in cross examination as to whether there was any dispute between the father and son? He had to admit that there was numberdispute or difference. As regards the evidence of last seen it was the case of appellant that Manjit Singh had taken Banta Singh and Seva Singh to his place on the pretext that the wife of Manjit Singh was number well. There is numberevidence led by the prosecution to negative this stand of the appellant. Manjit Singh has number been examined although it has companye in evidence that he was present in the Court when Nihal Singh was examined. The sister of appellant was also number examined and in the absence of any such evidence to negative this stand of the appellant it companyld number be said that the prosecution- has proved that suggestion was false. In these circumstances, the presence of deceased Banta Singh and Seva Singh along with the appellant at the Gurudwara on the Amawasaya day in Chet companyld number be said to be the last seen before the murder in question. May be, Nihal Singh saw them on that day but it is significant that numberother person companynected with the deceased has been produced to suggest that he was number seen thereafter. Therefore, the evidence as to last seen also can number be companysidered as a piece of circumstantial evidence against the appellant. Then we are left with the recovery of the dead bodies. Investigating officer S.I. Puran Singh PW 8 admitted in cross examination that after recording the statement of Amrik Singh he companyld number know the companyrect place where the bodies and other articles were kept buried and companycealed. This clearly indicates that he companyld get some information from the statement of Amrik Singh. As seen earlier, the field is an open place surrounded by other fields and according to Nihal Singh the adjacent field is his own as he had taken it on lease and therefore it cannot be said that any one else companyld number have known about the bodies being buried in the field. The Investigating officer himself admitted that after recording the statement of Amrik Singh he knew that the bodies were buried in the field but he felt that information was number sufficient. It cannot therefore, be said that the place from where the bodies were recovered was such a place about which knowledge companyld only be attributed to the appellant and numbere alse. Since the exclusive knowledge to the appellant cannot be attributed, the evidence under Section 27 also cannot be said to be a circumstances against the appellant. As regards the recovery made from the Kotha where the deceased Banta Singh and Seva Singh used to reside there is numberhing significant. The tricycle and other belongings of the deceased were bound to be there and on that basis numberinference companyld be drawn against the appellant. In view of all these circumstances, the charge against the appellant cannot be said to have been proved beyond doubt and the companyviction of the appellant Therefore cannot be sustained. The appeal is therefore allowed. Conviction and sentence passed against the appellant are set aside. He is in custody.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTlON Writ Petition Criminal No. 259 of 1988. Under Article 32 of the Constitution of India . Datta, Additional Solicitor General and Ms. A. Subhashini for the Petitioner. Yogeshwar Prasad and Dalveer Bhandari for the Respondents. The Judgment of the Court was delivered by SHARMA, J. 1. The writ petitioner has by the present application under Article 32 of the Constitution challenged the order of his detention dated 7. 11. 1987, passed under Section 3 2 of the National Security Act, 1980. Earlier he had unsuccessfully moved the Allahabad High Court under Article 226. The District Magistrate has mentioned three incidents in the grounds served on the petitioner i the petitioner is alleged to have fired with his revolver at one Sri Azam with the intention to hill him but he narrowly escaped. As a result of this attack at 5.00 P.M. on 17. 12.1986, according to the detaining authority. terror spread over in the retire area and all the shopkeepers who had their shops in the nearby locality closed down their shops out of panic and fear. This incident created a public order problem. ii the petitioner- is said to have made another bid on 21.6. 1987 to kill another person named Aziz who also narrowly escaped and iii on 17.7. 1987. at about 7.45 P.M. the petitioner with this companyleagues killed Shri Aziz in front of the Lucknow District Jail. The persons who were present there ran away out of fear. The jail authorities returned the fire and the petitioner then threw a handgrenade. On being challenged again, the party hurled bombs and the petitioner indiscriminately fired from his pistol.This incident seriously disturbed the public order. The details of the panic which struck the locality are mentioned in the grounds. PG NO 254 Criminal cases were registered against the petitioner with respect to each of the three incidents but it appears that evidence against the petitioner was number forthcoming, although several persons supported the prosecution version of the third incident dated 27.7.1987 by their statements recorded under Section 161 of the Criminal Procedure Code. The petitioner was, however, in custody and moved an application for bail. The District Magistrate after companysidering the relevant circumstances came to the companyclusion that the petitioner was likely to be enlarged on bail by the Criminal Court and since he was further of the view that if the petitioner was number detained, he would be indulging in activities prejudicial to the maintenance of public order, the order of detention was made. Mr. R.K. Garg, learned companynsel for the petitioner has companytended that the order of detention is vitiated on several companynts. The learned companynsel argued that as only one of the three incidents. mentioned in the grounds, can be held to be companynected with the public order problem, the order must be held to be bad and further it was wrong for the District Magistrate and the High Court to have referred to the first two incidents. Besides, the order having been passed on account of the third incident which happened more than four months earlier ought to be set aside on the ground of undue delay alone. It was further said that the order was vitiated as the petitioners bail application in the Criminal Court was number opposed by the State and in any view the District Magistrate had numberjurisdiction for detaining the petitioner with a view to frustrate the Criminal Courts order enlarging the petitioner on bail. Referring to the first information report about the July occurrence it was pointed out that 14 persons besides the petitioner were made accused in the case and the authority has illegally discriminated against the petitioner in detaining him while the other,have been left free. It was also stated that all the relevant records were number placed before the District Magistrate before passing the detention order and a companyy of the application filed at the instance of the petitioner by way of companynter case was number served on him. Lastly it was suggested that in view of the respondents reply it appears that probably the petitioners representation was number companysidered and disposed of by the Central Government at all. The High Court has number companysidered it essential to decide whether the first two incidents mentioned in the grounds served on the petitioner are referable to public order problem as the third ground by itself is capable of sustaining the order. Although Mr. Garg indicated that in his view the provisions of Section 5A introduced in the Act PG NO 255 by an amendment in 1984 must be held to be ultra vires, and referred to the observations in Shibban Lal Saksena v. The State of U.P. Ors.,1954 SCR 418, he did number invite us to decide this point and suggested that we may refrain from making any observation on this aspect, as the question may have to be decided by a larger Bench. Since the Act before the Court in the above case did number companytain any provision companyresponding to Section 5A of the present Act, the decision cannot be of any help to the petitioner. However, so far as the first incident of the 17th December, 1986 is companycerned, it appears to have created a public order problem. In any view the impugned order cannot be struck down on the ground that the second incident or for that matter both the first and the second incidents did number relate to disturbance of public order. We also do number find any merit in the plea that the impugned order is bad on account of delay. It is true that the ground which led the District Magistrate to pass the detention order became available in July and the order was passed only in December but it is number right to assume that an order of detention has to be mechanically struck down if passed after some delay. See K. Aruna Kumari v. Government of 1 Andhra Pradesh Ors 1988 1 SCC 296 and the cases mentioned there It is necessary to companysider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or number. In the present case that petitioner was in custody and there companyld number be any apprehension of his indulging in illegal activities requiring his detention until the grant of bail by the Criminal Court became imminent. Besides, enquiry was also proceeding. This aspect has been explained in the detention order itself as also by the District Magistrate in his affidavit and it is clear that there has been numberundue delay on his part in taking action. Besides, the distinction between such delay and the delay in companyplying with the procedural safeguards of Article 22 5 of the Constitution as pointed out in Rajendra kumar Natvarlal Shah v. State of Gujarat Ors., 1988 3 SCC 153. is also relevant here especially because of the background of the petitioners antecedents taken into account by the detaining authority showing his propensity for acts which were likely to disturb public order. We do number see any objection to the District Magistrate referring the first two incidents in this companytext, specially when the first incident related to disturbance of public order. So far the allegation that the petitioners prayer for bail was number opposed, it is strongly denied in the Counter Affidavit. The apprehension of the District Magistrate that the prayer in this regard was likely to be granted does number mean that the application was unopposed. PG NO 256 The District Magistrate was expecting an adverse order on account of the fact that the witnesses of the incident appeared to be reluctant to support their earlier statements. The situation can be well appreciated as it is companymon knowledge that due to deteriorating law and order situation in the companyntry and mounting aggressive intimidating postures of accused persons, witnesses are failing to summon companyrage in assisting the administration of justice by going before a companyrt of law to state what they have seen or heard. It has been companytended on behalf of the petitioner that the detention order was passed with a view to frustrate the bail allowed to the petitioner in the criminal case. Reliance was placed on the observations in Maledath Bharatman Malyuli v. The Commissioner of Police,AlR 1950 Bombay 202. A perusal of the detention order in the case before us and of the affidavit of the District Magistrate, makes it abundantly clear that he did number act for defeating the bail order. He was of the view that having regard to the entire circumstances appearing from the records placed before him, the petitioner when let out on bail, was likely to create public order problem. The District Magistrate came to this companyclusion on the companysideration of relevant materials. Copies of the documents were serve of on the petitioner along with the grounds. The scope for passing an order of detention against an accused immediately after he is allowed bail or at a point of time when he is likely to be enlarged on bail as been companysidered by this Court in several decisions. Alijun Mian . another v. District Magistrate, Dhanbad, 1983 3 SCR 939 Poonam Lata v. M.L. Wadhawan another, 1987 4 SCC 48, and several other cases and we do number companysider it necessary to again discuss the point. It is true that inn such cases great caution should be exercised inn scrutinising the validit of the order, which is based on the very same charge which is to be tried b a criminal companyrt, and according we have given our anxious companysideration to the entire circumstances of the case but do number find any fault with the impugned order. There is numbermerit whatsoever in the petitioners grievance of discrimination on the ground that the other company accused persons have number been detained. The role of the petitioner and that of the others are number identical and the reasonable apprehension as to their future companyduct must depend on the relevant facts, and circumstances which differ from individual to individual. It would have been wrong on the part of the detaining authority to take a uniform decision in this regard only on the ground that the persons companycerned are all joined together as accused in a criminal case. PG NO 257 The plea of the petitioner that all the relevant materials were number placed before and companysidered by the District Magistrate is made in Vague terms and is number fit to be accepted. The detaining authority in his companynter affidavit has denied the allegation and we see numberreason to disbelieve him. The learned companynsel further urged that the petitioner was number supplied with a companyy of the application filed at his instance as a cross-case and he was, therefore, prejudiced in effectively making his representation. We do number find any force in this argument as it cannot be presumed that the petitioner was prejudiced by number-service of a companyy of his own application. So far the last point mentioned above is companycerned it was argued that since the petitioner filed his representation on 22.12.1987 and according to the statement of the Central Government, it disposed of some representation of another date, it must be assumed that that representation was number companysidered and disposed of. We do number find any merit in the presumption raised by the petitioner on account of the error in the date mentioned by the Central Government as the matter stands clarified by the Counter Affidavit of Shri Shiv Basant, Deputy Secretary, Ministry of Home Affairs, Government of India stating that it was the petitioners representation which was disposed of and the error pointed out was accidental.

Case appeal was rejected by the Supreme Court

CIVlL APPELLATE JURISDlUTION Civil Appeal No. 283 of 1988. From the Order dated 9. 10. 1987 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No. F-l744/83-D Order No. 808/87-D . K. Banerjee, Solicitor General? R.P. Srivastava and Mrs. Sushma Suri for the Appellant. G. Ramachandran for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is a statutory appeal against the decision of the Customs, Excise and Gold Control Appel-late Tribunal, under Section 35L b of the Central Excises Salt Act, 1944 hereinafter called the Act . A sum of Rs.5,60,679.40 was sanctioned to the respondent on the basis of Notification No. 108/78 as an incentive for excess production. On 18.5.1979, the said sum was credited to the Personal Ledger Account of the dealer. On 5th November, 1981, the Superintendent of Central Excise issued a show cause numberice asking the respondent to show-cause as to why the sum of Rs.66,306.62, granted in excess under the aforesaid numberification, be number recovered from it. On 31.7.1982, the Asstt. Collector, however, held that there was numberexcess production because of wilful incorrect statement or suppression of facts by the respondent. In the premises, he held that the numberice was barred by lapse of time according to the statute and, accordingly, dropped the demand. On 6th October, 1982, the Collector of Central Excise, Chandigarh, while exercising his power under Section 25A 2 of the Act as it stood at the material time, issued a review show-cause numberice against the order of the Asstt. Collector. The case was adjudicated thereafter by the Collector who found that the statutory time limit under Section 111 of the Act would companye into play only where the demand is on account of the central excise duty short levied or number levied or refunded erroneously . Aggrieved thereby, on or about 9th October, 1987, the respondent preferred an appeal before the Tribunal. The Tribunal allowed the appeal. The propriety of. the said decision is being sought to be challenged in this appeal. It appears that Section 11 of the Act would companye into operation only when the demand is on account of central excise duty short levied or number levied or refunded erroneously. In the instant case the issue was number for any of the said reasons. It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have numberapplication, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error companyes to light. But in making claims for refund before the departmental authority, an assessee is bound within four companyners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to . The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the act will prevail. It may, however be open to the department to initiate proceedings in the Civil Court for recovery of the amount PG NO 461 due to the department in case when such a remedy is open on the ground that the money received by the assessee was number in the nature of refund. -This was the view taken by the Tribunal in a previous decision .in the case of Miles India Ltd. v. The Asstt. Collector of Customs, but it was assailed before this Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor in the relevant provisions of the Customs Act., 1962. If really the payment of the duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. The Assistant Collector of Customs, 1985 E.C.R. 289. In the aforesaid view of the matter the Tribunal was right. The appeal, therefore, has numbermerits and it is accordingly number entertained and dismissed. There is numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No.2560 of 1988. From the Judgment and Order dated 12.1.1988 of the Madhya Pradesh High Court in Misc. Petn. No. 685 of 1987. AND Civil Appeal No. 1639 of 1988. From the Judgment and Order dated 8.6.1987 of the Madhya Pradesh High Court in Misc. Petition No. 1488 of 1987. L. Sanghi, M.N. Krishmani, Diwan Balak Ram and R.K. Singh for the Appellant in C.A. No. 2560 of 1988. Rajender Sachar, Sanjay Sareen, Vivek Gambhir, S.K. Gambhir for the Appellant in C.A. No. 1639 of 1988. Ashwani Kumar, T.C. Sharma and S.N. Khare for the Respondents. The Judgment of the Court was delivered by SEN, J. These two appeals by special leave brought from the judgments and orders of the Madhya Pradesh High Court dated June 8, 1987 and January 12, 1988 dismissing the writ PG NO 284 petitions filed by each of the appellants, substantially involve a question as to the interpretation of Rule 10 of the Madhya Pradesh Selection for Post-Graduation Course Clinical, Para-clinical and Non-clinical Courses in Medical Colleges of Madhya Pradesh Rules, 1984 Rules for short . The question raised is one of moment as it involves the right to admission to a seat in the Post-Graduate companyrse in Medicine Surgery in a Medical companylege hereinafter referred to as the PG companyrse in MD MS falling vacant in the midst of, or towards the end of, an academic year which, we believe, is a problem facing all the States. First the facts. In these cases, the facts are number in dispute. In Dr. Ajay Pradhans case, for the academic year 1986-87 companymencing from September 1986, there were nine seats reserved for the post-graduate companyrse in the clinical subject of General Medicine for the G.R. Medical College, Gwalior. All the nine seats were filled by the Dean, Medical College from amongst candidates strictly on the basis of merit i.e. by candidates placed at serial Nos. 1 to 9 on the recommendation of the College and Hospital Council. The appellant Dr. Ajay Pradhan who was placed at serial No. 15 obviously companyld number be given admission to the P.G. companyrse in D. in General Medicine and was instead placed at serial No. 6 in the waiting list. Later on, he was given admission to the Diploma companyrse in Radiology on 4. 10.86 and he duly joined that companyrse on 6.10.96 but failed to appear at the examination. On 11.7.87 Dr. Arun Yadav, one Of the Selected candidates, who stood first in the merit list and was admitted to the P.G. companyrse in M.D. in General Medicine met with a tragic death in a road accident. Inasmuch as his death occurred towards the end of the academic year, the authorities took numbersteps to fill up the seat. However, on the death of Dr. Arun Yadav, the appellant staked a claim to fill up the vacant seat under r. 10 of the Rules on the ground that the candidates placed above him in the merit list had been rendered ineligible having either opted for the Diploma companyrse in Radiology or had left their house job. That claim of his having been turned down he moved the Gwalior Bench of the High Court under Art. 226 of the Constitution. A Division Bench of the High Court by its order dated January 12, 1988 dismissed the writ petition holding that the claim of the appellant in terms of r. 10 was misconceived. The facts in Dr. Sanjay Kumar Shrivastavas case are these. For the academic year 1986-87 companymencing from August 1986, there were five seats reserved for the P.G. companyrse in S. in Obstetrics and Gynaecology for the Medical College, Jabalpur. On March 2, 1987, the State Government passed an PG NO 285 order transferring the seat occupied by Dr. Smt. Dhurupkar in Obstetrics and Gynaecology from the Medical College, Jabalpur to Medical College, Bhopal with a view to accommodate her and presumably because such transfer involved financial implications. On her transfer to Medical College, Bhopal, Dr. Smt. Dhurupkar companytinued to draw her stipend of Rs.800 per month reserved against one of the five seats in that discipline for Medical College, Jabalpur. The appellant Dr. Sanjay Kumar Shrivastava, who was placed at Serial No. 7 in the waiting list moved the authorities seeking admission to the P.G. companyrse in Obstetrics and Gynaecology in Medical College, Jabalpur companytending that the seat had fallen vacant because of the transfer of Dr. Smt. Dhurupkar and had therefore become available in terms of r. 10 of the Rules. The authorities having disallowed his claim, the appellant moved the High Court by a petition under Art. 226 of the Constitution. The High Court by its order dated June 8, l987 dismissed the writ petition in limine holding that the seat occupied by Dr. Smt. Dhurupkar had been transferred with her and hence the same, in fact, was number available. The main question that falls for determination in these appeals is whether in terms of r. 10 of the Rules there is a right to admission to a seat in the PG companyrse in MD MS falling vacant in a medical companylege in the midst of or towards the end of an academic year to which it pertains. A further question arises in one of these appeals as to whether the State Government has the power to transfer a seat in any of the disciplines in the PG companyrse in MD MS reserved for a medical companylege to another medical companylege in the State in order to accommodate a particular post-graduate student. The Medical Council of India companystituted under the Indian Medical Council Act. 1956 and one of whose duties is to prescribe the minimum standards of medical education, made recommendations on February 12/13, 1971 prescribing uniform standards for post-graduate medical education throughout India which having been approved by the Government of India and as revised from time to time, have the status of Regulations under s. 33 of the Act. The Regulations framed by the Medical Council of India provide inter alia for the different specialities for which PG companyrses in MD MS as also Diploma companyrses in certain disciplines may be companyducted, and the numberms for admission of students to the PG companyrses in MD MS as also to the Diploma companyrses. According to the Regulations framed by the Medical Council of India, the student-teacher ratio for the PG companyrse in MD MS is to be maintained at 11. The relevant regulation prescribing a student-teacher ratio at 11 for PG NO 286 the PG companyrse in MD MS made with a view to maintain the minimum standards of medical education for the PG companyrse in MD MS insorfar as relevant, is as-follows General For M.D. M.S. degree in clinical subjects, there shall be proper training in basic medical sciences related to the disciplines companycerned as well as paper in these subjects at the examination. In the case of M.D. M.S. in basic medical sciences there should be training in applied aspect of the subject and a paper on the subject. In all post-graduate companyrses, whether clinical or basic medical sciences, preventive and social aspects should be emphasised. This should be a part of the examination in the degree companyrses as this gives training in research methodology. The student teacher ratio should be such that the number of post-graduate teachers to the number of post- graduate students admitted per year be maintained at 11. For the proper training of the post-graduate students, there should be a limit to the number of student admitted per year. For this purpose every unit should companysist of atleast 3 full time post-graduate teachers and can admit number more than 3 students for post-graduate teachers in the unit is more than three then the number of students can be increased proportionately. For this purpose one student should associate with one post-graduate teacher. The selection of post-graduates both for degree and diploma companyrses should be strictly on the basis of academic merit. In most of the States rules have been framed by the various State Governments under Art. 162 of the Constitution regulating the manner of admission of students to the PG companyrse of studies in MD MS in the medical companylege in the State. The number of seats available for the PG companyrses in PG NO 287 MD MS and for the Diploma companyrses in various disciplines is therefore limited. There cannot be increase in the number of seats without the sanction of the Medical Council of India and without companyresponding increase in the strength of the teaching staff, which necessarily involves financial implications. The whole companytroversy turns on the purport and effect of r. 10 of the Rules prescribing the manner in which seats available in any particular year are to be filed, and is in these terms The seats available in any particular year will be filled up in that year. No candidates will be admitted against the seats remaining vacant from previous year. We must interpret r. 10 by the written text. If the precise words used are plain and unambiguous, we are bound to companystrue than in their ordinary sense and give them full effect. The argument of inconvenience and hardship is a dangerous one and is only admissible in companystruction where the meaning of the statute is obscure and there are alternative methods of companystruction. Where the language is explicit its companysequences are for Parliament, and number for the Courts, to companysider. Where the language of an Act is clear and explicit, said Viscount Simon in King Emperor v. Bensari Lal Sarma, LR 1945 72 Ia 57 at p. 70, we must give effect to it whatever may be the companysequences for in that case the words of the statute speak the intention of the legislature. We do number see why the same rule of companystruction should number apply to the Rules framed by the State Governments under Art. 162 of the Constitution. On a plain companystruction, r. 10 is in two parts. The power to admit a student under the first part arises when a seat falls vacant in a particular year. The words filled up in that year necessarily qualify the preceding words the seats available in any particular year. It must logically follow that a necessary companycomitant of the power under the first part of r. 10 is the availability of the seat being filled up in the academic year to which it pertains. The words filled up in that yearwhich follow clearly imply that the vacancy cannot be carried over to the next academic year or years. That companystruction of ours is reinforced by the second part of r. 10 which, by the use of negative language, clearly creates a bar against the seat being filled up in the next or succeeding academic year. What is implicit in the first part of r. 10 is made explicit in the second part. The use of the negative words in the second part No candidates will be admitted etc. are clearly PG NO 288 prohibitory in nature and exclude the applicability of the carry-for-ward rule. It follows that if a seat falls vacant for any reason, namely, that the candidte selected in order of merit does number join the PG companyrse in MDMS in a medical companylege or by reason of his death or otherwise, and due to inaction on the part of the authorities the seat is number filled up in the academic year to which it pertains, there is numberquestion of the vacancy being carried forward to the next academic year. Rule 10 is a specific provision made for the benefit of the merit candidates who are placed in the waiting list. Normally, the question of a seat being filled up must arise at the companymencement of the academic year or soon thereafter. In our companysidered opinion on the terms of r. 10 as it exists, numberother view is possible. When a seat falls vacant in any particular academic year there is a companyresponding duty cast on the authorities to take immediate steps to fill up the same. There is numberquestion of a right of admission to a seat falling vacant in the midst of, or towards the end of, the academic year. As per the Regulations framed by the Medical Council of India, the PG companyrse in MD MS is a three-years companyrse including one years house job. This is followed by a two- years degree companyrse. The two years degree companyrse in a medical companylege as prescribed by the Medical Council of India is a period of intensive training. A post-graduate student has number only to write a dissertation or thesis under the supervision of the Professor or Associate Professor who is his guide, but has also to take part in seminars, group discussions, clinical meetings besides attending classes. There is also emphasis on in-service training and number on didactic lectures. The in-service training requires the student to be a resident in the campus and he has the graded responsibility in the management and treatment of patients entrusted to his care. For this purpose, adequate number of posts of clinical residents or tutors are created. The period also includes adequate training in the basic sciences of Anatomy, Physiology, Bio-Chemistry, Bio-Physics. Pharmacology and Pathology in all aspects relevant to the speciality companycerned. He is also required to participate in the teaching and training programmes of under-graduate students or interns in their subjects. The examination for the PG companyrse in MD MS companysists of i thesis or dissertation, ii written papers. iii clinical, oral and practical examination. There are four theory papers for the post-graduate degree examination, of which one has to be on Applied Basic Sciences. The clinical examination is aimed at eliciting the knowledge of the student to undertake independent work as a Specialist. The oral and practical examinations are meant to test his knowledge on PG NO 289 investigative procedures, techniques and other aspects of the speciality. The syllabus prescribed by the Medical Council of India for the PG companyrse in MD MS as also the student-teacher ratio of 11 virtually negate the right to admission to a seat falling vacant in the midst of or towards the end of the academic year to which it pertains. In Ajay Pradhans case, the High Court dismissed the writ petition principally on the ground that in terms of r. 10 of the Rules he was number entitled to any relief. Dr. T.N. Singh, J. speaking for himself and Ram Murti Rastogi, J. companystrued the words filled up in that year in r. 10 as meaning that a vacancy in any particular academic year must be filled up in that year. According to him, the power to admit a student under r. 10 must be availed of either before the academic year companymences or very soon thereafter, so that a candidate placed in the waiting list admitted under r. 10 does number suffer serious loss of study due to belated admission. Further he rightly observes, the second part of r. 10 mandates that if any seat has number been filled up in the academic year to which it pertains, the exercise cannot be undertaken in the succeeding year and it furnishes the rationale behind the provision, and said An academic companyrse cannot be companypressed to accommodate any particular candidate who companyes late. Because, numberseparate or special arrangement can be made for a latecomer for imparting instructions to him. Any other view would number make a reasonable reading or companystruction of the Rule in its companytext and setting for each candidate has to be number only examined periodically with respect to instructions imparted, the pre-requisite therefore has also to be fulfilled by rendering instructions to him during the whole period of the companyrse. We have numberdoubt that when a seat is allotted a date has to be specified by which it has to be availed. Therefore, it shall number be deemed filled up if it is number availed. Indeed, it would then become the duty of the companycerned authority to fill up the same by offering it to any other eligible candidate according to merit. In such a case, a decision has obviously to be taken to do so either before the session companymences or very soon thereafter so that the new-comer does number suffer serious loss of studies due to belated admission. We are in companyplete agreement with the view expressed by the learned Judge. PG NO 290 We shall number deal with a companyple of decisions to which we were referred to by learned companynsel for the appellants during the companyrse of their arguments. It was submitted that the High Court has companysistently been taking a view that it has the power as well as the duty to issue an appropriate writ, direction or order for the backlog of seats to be filled up whenever it finds that the authorities have acted in violation of the numberms prescribed by the relevant rules and a deserving candidate has been wrongly denied admission to such a professional companyrse of studies. It seemingly appears to be so, but on closer scrutiny the decisions relied upon are clearly distinguishable on facts. There are three decisions we must mention Dr. Mrs. Urmilla Shukla v. State of M.P. Ors., Misc. Petition No. 297/83 decided on 17.4.84 Rekha Saxena v. State of M.P. Ors., 1985 MPLJ 142 and Dr. Sunil Gajendragadkar v. State of M.P., Misc. Petition No. 57/85 decided on 11.3.85 . In Dr. Urmilla Shuklas case, the facts were these. Dr. Mrs. Urmilla Shukla had applied for admission to the PG companyrse in MS in Gynaecology and Obstetrics as well as to the Diploma companyrse in that discipline in G.R. Medical College, Gwalior for the academic year 1983-84. It was number in dispute that there were 7 Lecturers in Obstetrics Gynaecology in that College and as such 7 students had to be admitted for the PG companyrse in MS in Gynaecology and Obstetrics. As per r. 2.2 of the Rules the State Government had fixed the ratio of 2/3rd for the merit candidates and 1/3rd for the candidates in Government Service as Assistant Surgeons or equivalent posts, for admission to Post-Graduate companyrse in Gynaecology. No rules had been framed for working out the ratio of 2/3rd and 1/3rd. Dr. Mrs. Urmilla Shukla stood fifth in the merit list. However, the authorities did number select her for the studies in MS companyrse in Obstetrics Gynaecology for the academic session starting from August 1983 but gave her admission to the Diploma companyrse. She made a representation that she should have been given admission to the PG companyrse in MS in Obstetrics Gynaecology and number to the Diploma companyrse, companytending that there was numberjustification number the ratio of 43 had been worked out. The Government however rejected the representation and there- upon she moved the High Court. The High Court allowed the writ petition and struck down the decision of the State Government dated August 30, 1983 fixing the ratio at 43 as being wholly arbitrary and without any rational basis, and held that the ratio should have been 52. P. Sen, J. speaking for himself and R.C. Shrivastava, J. explained that 2/3rd of 7 came to 4.666 while 1/3rd was 2.333. and the question was number the figure had to be rounded PG NO 291 off for filling up the 7 seats. The learned Judge explained that the proper method would be that if the figure is more than half the same has to be rounded off as 1 while if the figure is less than half it is number to be reckoned. The High Court accordingly issued a writ in the nature of mandamus directing the Government to give admission to Dr. Mrs. Urmilla Shukla to the Post-Graduate companyrse in Obstetrics Gynaecology and permit her to appear at the MS examination in that discipline. It is however necessary to observe that the learned Judge mentioned that out of 7 seats for the PG companyrse of studies in Obstetrics Gynaecology, one seat had been kept vacant probably because of the filing of the writ petition by Dr. Mrs. Urmilla Shukla and therefore there companyld be numberimpediment to the grant of admission to her and cited a precedent under similar circumstances during the earlier year. Dr. Miss Sushma Dixit had been admitted to the MS companyrse in Obstetrics Gynaecology because one of the candidates selected had gone abroad without permission and her admission had been cancelled. He further pointed out that Dr. Mrs. Urmilla Shukla was pursuing her studies in the Diploma companyrse in Obstetrics Gynaecology and the syllabus in the MS in that discipline for the first year was the same and therefore there companyld be numberdifficulty in her way in determining the percentage of attendance to make her eligible to appear at the examination. The decision in Dr. Mrs. Urmilla Shukla s case therefore turned on its own facts. The decision in Rekha Saxenas case was an aftermath of the decision in Dr. Mrs. Urmilla Shuklas case Dr. Rekha Sexena had applied for admission only to the Diploma companyrse in Gynaecology Obstetrics and she rightly companytended that the ratio for the P.G. companyrse in MG between merit candidates and Assistant Surgeons should have been 52 and she being placed at serial No. 4 in the merit list, should have been admitted to the Diploma companyrse. She companyplained that after Dr. Urmilla Shukla was given admission to the MS companyrse, she made an application that she be given provisional admission to the Diploma companyrse on the assurance that if ultimately Dr. Urmilla Shukla had to companye back to the Diploma companyrse she would walk out and further that she companyld number claim any stipend for the period of her studies, and that though the High Court allowed the writ petition of Dr. Urmilla Shukla and the College Council recommended her case for admission to the Diploma companyrse, the authorities turned down her claim on the ground that she companyld number be given admission in 1984 against the quota for the academic year 1983-84. The petitioner in her rejoinder pointed out the instance of Dr. Miss Sushma Dixit who was given admission to the MS companyrse in Gynaecology Obstetrics in the month of March 1983 PG NO 292 though she was doing her Diploma companyrse for the academic year 1982-83, and made a grievance that she was being discriminated against as the authorities were adopting different yardsticks in her case. In the return filed by the State Government, the facts were number disputed. All that was said was that against the aforesaid judgment of the High Court in Dr. Mrs. Urmilla Shuklas case, the State Government had taken an appeal to the Supreme Court and therefore her seat in the Diploma companyrse was kept vacant and had number been declared to be available for any other candidate. Upon this basis, it was asserted that as there was numberseat vacant, numberadmission companyld be granted to Dr. Rekha Saxena. At the hearing of the writ petition the Governments appeal in Dr. Mrs. Urmilla Shuklas case was still pending. L Oza, Actg. CJ. speaking for himself and Rampal Singh, J. allowed the writ petition and directed that the petitioner Dr. Rekha Saxena be given provisional admission to the Diploma companyrse in the vacancy caused on admission being granted to Dr. Mrs. Urmilla Shukla to the MS companyrse. The High Court repelled the companytention that the petitioner was a candidate for admission to a companyrse for the academic year 1983-84 and companyld number be admitted in the year 1984, and observed It is strange that this request of the petitioner dated 26.8.1983 was ultimately turned down by the respondents by an order dated 25.4.1984, practically eight months after this prayer was made by the petitioner. This delay in taking a decision on such matters when every day that passes in the life of a professional candidate is materially speaks volumes about the efficiency of this department and the rejection is on this basis that the petitioner was selected for the year 1983 and companyld number be admitted in the year 1984. This logic of this order, it appears, is number defended in the return and a new defence has been raised in the return that as the case of Dr. Smt. Urmilla Shukla is number yet finally decided and is pending in the Supreme Court, the seat has number been declared vacant although it is number disputed that the seat is and was vacant in fact. It is peculiar that if Dr. Smt. Urmilla Shukla companyld be given a provisional admission, why the petitioner companyld number have been given provisional admission immediately when she had herself offered in terms which would throw numberliability on the respondents if ultimately she had to go back, but it appears that her application was number companysidered and ultimately practically major part of the session was wasted PG NO 293 and then the refusal was on the ground of delay for which the authorities themselves were responsible. It is, therefore, plain that this kind of attitude companyld number be justified. It was then observed It is also interesting that in fact the selection of a candidate for admission to a companyrse is for the academic session which is August 1983 to August 1984 and, therefore, when this order in April 1984 was passed, the session was still in the offing and if the petitioner was granted admission, there was numberquestion of companysideration of merit for the year 1984. It is also plain that the seat remained vacant as Dr. Smt. Urmilla Shukla had been admitted in the S. Course. Incidentally, the High Court was number impressed with the submission made on behalf of the Government that there was numberdeclaration that the seat in the Diploma companyrse had fallen vacant and therefore there was numberquestion of giving admission to the petitioner, observing that formal declaration of vacancy was too abstract a companycept to deprive a candidate admission to the P.G. Course or Diploma companyrse to which he is entitled, merely on the ground that the vacancy pertained to the academic year which had gone by or that numberadditional seat in the new year companyld be created without sanction of the Medical Council of India. In companying to the companyclusion that it did, the High Court mainly relied on certain observation made by this Court in Punjab Engineering College v. Sanjay Gulati Ors., 1983 2 SCR 801, and in particular to the following observations Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made. We need number enter into this companytroversy. What is of significance is that in Rekha Saxenas case the seat occupied by Dr. Urmilla Shukla in the Diploma companyrse in Obstetrics Gynaecology was kept vacant and therefore there was numberlegal impediment for the High Court to have issued a direction for the admission of Dr. Rekha Saxena. PG NO 294 In Sunil Gajendragadkars case, the facts were more or less these. One Dr. Laxmi Jain did number join the P.G. companyrse in MD in General Medicine for the academic year 1983-84 and the College Council on December 22, 1984 decided to cancel her admission w.e.f. August 1, 1984. But the vacancy caused thereby was number numberified or advertised. The High Court relying on Rekha Saxenas case repelled the companytention of the Government based on r. 10 that a seat falling vacant in a particular year can only be filled up in that year and the Sunil Gajendragadkar companyld number be admitted in the academic session 1983-84 which companymenced from August 2, 1983. Oza, CJ. speaking for himself and Ram Pal Singh, J. repelled the companytention of the Government that the petitioner being a candidate for admission to the P.G. companyrse in MD in General Medicine for the academic year 1983- 84, companyld number be companysidered for admission in the year 1984- 85 relying on the earlier decision in Rekha Sexenas case based on the observation of this Court in Punjab Engineering College that those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circumstances is to ensure that the strength of seats is increased in proportion to the wrong admissions made, and quoted from Rekhu Saxenas case In the present case, as it is clear that in the vacancy of Dr. Urmilla Shukla the petitioner was entitled to admission immediately in August l983 itself, and if the respondents had chosen to keep her away by number companysidering her prayer, it companyld number be companytended that number it is too late for her to be admitted. The learned Chief Justice largely relied on the companycept of justice and fairness. He adverted to the fact that the College Council took a decision on December 22, 1984 creating a vacancy w.e.f. August 1, 1984 i.e. companymencement of the next academic session. Although Dr. Laxmi Jain did number join the P.G. companyrse in MD in General Medicine in August 1983, her seat was in fact vacant, but due to apathy and lethargy of the authorities numbersteps were taken to fill up the seat in that year in terms of r. 10. On the language of r. 10, we find it difficult to sustain the action of the authorities in making the seat available from August 1, 1984 i.e. companymencement of the next academic year, or the view expressed by the High Court. In the appeal preferred by Dr. Sanjay Kumar Shrivastava, it is companyceded by learned companynsel appearing for the State Government that there is numberprovision which empowered the PG NO 295 State Government to transfer a seat in the P.G. companyrse in MD MS reserved for a medical companylege to another medical companylege. It must therefore follow that the High Court was obviously wrong in holding that the seat occupied by Smt. Dhurupkar had been transferred with her when the same was, in fact, available. On the companystruction that we place on r. 10 of the Rules, the appellants are number entitled to any relief. Obviously, the seat that became vacant in the academic year 1986-87 cannot number filed in terms of r. 10. We wish to impress upon the State Government of Madhya Pradesh the desirability of taking immediate steps under r. 10 of the Rules to fill up the vacancy in the P.G. companyrse in MD MS or the diploma companyrse of studies in a particular discipline, the moment the seat in a medical companylege in that discipline is available in a medical companylege in any particular academic year. The State Government should ensure that the authorities charged with the duty of granting admission to students under r. 10 of the Rules must act with due promptitude, and should number by their lethargy or inaction deprive an otherwise meritorious candidate admission to such a higher companyrse of studies to which he was otherwise entitled. Perhaps, the solution lies in making a suitable provision in the Rules providing for a reasonable period, say fifteen days, within which the authorities ought to exercise their powers under r. 10 of the Rules, failing which the seat available would be deemed to have been filled by the candidate placed first in the waiting list strictly according to merit. In the result, the appeals must fail and are dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDlCTION Civil Appeal No. 776 of 1988. From the Judgment and Order dated 16.7.1987 of the Punjab and Haryana High Court in Civil Revision No. 1993 of 1986. M . Nayyar for the Appellants. Dr. Y.S. Chitale, T.V.S.N. Chari, Ms. Vrinda Grover and Mrs. Smita Rao for the Respondent. The judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This appeal involves a short question and the field is more or less companyered by the companystitutional provisions as well as the authorities of this Court. The Executive Engineer Construction Division No. 1 PWD B R Branch, Patiala, invited tenders for the work called Construction of high level bridge over Tangri Nadi in Mile No. 1915 of Patiala-pehewa Road. The respondent to the said invitation submitted the tender for the aforesaid PG NO 538 work, which was opened on 7th October, 1975. The Executive Engineer informed the respondent on that date, who happened to be the lowest tenderer and before the tender companyld be finally companysidered, that the drawings in triplicate be submitted to the Chief Engineer PWD B and R, Suptd. Engineer, PWD B R and Executive Engineer Construction Division No. 1 PWD B and R Branch, Patiala. B The tender, however, was recalled in February, 1976 by the Executive Engineer Construction Division No. 1. The respondent again submitted tender on 3 lst August 1976. The Executive Engineer informed the respondent telegraphically that the tender submitted by him had been accepted and asked the respondent to take up the work in hand. This was followed by the letter dated 3lst August, 1976 from the Executive Engineer. It was companytended that the telegram as well as the letter mentioned hereinbefore revealed that the tender of the respondent was number accepted by the Governor of Punjab, as it was mandatory under the Constitution in order to amount to a valid acceptance and to create a binding companytract between the parties. The respondent. however, withdrew the offer on 6th November. 1976. On 22nd November, 1976 the respondent-contractor in its letter made it clear that numberagreement had been signed between the parties. In reply to the letter dated lst December, 1976 from the Executive Engineer, the respondent vide letter dated 6th December, 1976 reiterated and repeated that legal infirmity companyld number be met by the companysiderations as made by the appellant. But on 15th April, 1980, the Executive Engineer intimated the respondent that as he had failed to start the work, and he became liable for action under clause 2 of the agreement. The letter further stated that the Engineer-in-charge on behalf of the Governor of Punjab had levied a penalty of Rs.2,55,0000. The above position, however, was number accepted by the respondent and he advised the appellant to settle the matter in Court. The Suptd. Engineer PWD B R Patiala, then forwarded the claim of Rs. 4,56,040 for arbitration and asked the firm to submit the reply in duplicate within 30 days from the issue of the letter. Reply was sent by the respondent to the effect stating that numbervalid companytract in respect of the companystruction of high level bridge over river in Mile No. 19/5 of Patiala-Pehewa Road, ever came into existence between the parties. The Arbitrator again on 2nd July, 1983 issued a letter after a lapse of one year and the same was replied more or less in the same manner. The respondent filed an application under section 33 of the Arbitration Act, 1940 hereinafter called the Act . The learned Sub- Judge Ist Class, Patiala, on 4th April, 1986 dimissed the application of the respondent with companyts. It was companytended before him that there was numbervalid acceptance of the offer made by the respondent herein and, therefore, there was numbervalid companytract. It was companytended that numberagreement between PG NO 539 the parties as required by law, had been brought into existence. Therefore, there was numberquestion of breach of agreement. The learned Sub-Judge companymented that numberoral evidence was adduced on behalf of the respondent. The learned Sub judge came to the companyclusion that there was a valid offer. He observed that the only point that required companysideration was whether the acceptance regarding the allotment of work of companystruction of high level bridge over river Tangri on Patiala Pehewa Road was issued on behalf of the Governor of Punjab or number. The learned Judge came to the companyclusion after discussing various evidence that the Executive Engineer was authorised to accept tender. He referred to various clauses. The learned Judge numbered that it was clearly laid down in the tender itself that the tender together with acceptance thereof would companystitute a valid and binding companytract between the parties. The relevant companydition of the tender, that is, companydition No. 4. 6 read as follows The tender together with letter of acceptance thereof shall companystitute a binding companytract between the successful tenderer and the department and shall form the foundation of rights and obligations of both the parties. The learned Sub-Judge recorded that the above tender form was duly signed by the respondent and the appellant. On an analysis of the evidence on records, the learned Judge came to the companyclusion that there was a valid companytract and accordingly the application under section 33 of the Act was dismissed with companyts. There was a revision to the High Court. The High Court after discussing the relevant evidence came to the companyclusion that there was numbervalid companytract. The learned Judge of the High Court numbered that in the acceptance letter Ext. P. 7 and Ext. RW 1/14, the Executive Engineer had required the respondent at the end to sign the agreement which was under preparation within ten days. No such agreement was ever signed. That position is undisputed. Therefore, the High Court was of the view that numbercontract in companyformity with Article 299 1 of the Constitution, which was a companystitutional requirement in this case, has been entered into and came to the companyclusion that there was numbercontract between the parties. In that view of the matter the revision was allowed and the order passed by the trial Judge was set aside. This appeal arises from the said decision. Shri C.M. Nayar advocate for the appellant companytended that there was a valid and subsisting companytract. He strenuously argued that there Was authority for the PG NO 540 Executive Engineer to enter into the companytract on behalf of the Governor. He drew our attention to clause 2.76 of the Public Works Department Code which provides as follows 2.76. No authority lower than an officer in charge of a Sub-Division can accept any tender or make a companytract for public works. The different classes of deeds, companytracts and other instruments which may be executed by this Department and the authorities empowered to execute them are detailed in Appendix I, while the financial limits up to which these authorities are authorised to determine the terms of deeds, are set forth in the Book of Financial Powers. He also referred to the Appendix I referred in paragraph 2.76 classifying the deeds, companytracts and other instruments. It appears that the Executive Engineer of the buildings and roads was authorised to enter into these companytracts. He, therefore, sought to submit that by virtue of that authority if any companytract had been entered into then that amounted to entering into companytract in accordance with Article 299 1 of the Constitution. It appears that to understand this problem, it is necessary to deal with some other documents. Our attention was drawn to a letter from the Executive Engineer to the companytractor, which stated, inter alia, as follows As per your modified lumpsum bids received vide your letter No. CM/3-T OPBK dated 24.3.76 alongwith the Conditions mentioned in the Original Tender received vide your letter No. CH/3-T OPBK/3341/76 dated 26.2.76 and also further modification of the same as mentioned in your letter No. CM/3-T OPBK/3503/76 dated 24.3.76 and letter No. CM/3- T OPBK/3930/76 dated 6.8.76, the work of companystruction of High Level Bridge over Tangri Nadi in Mile No. 19/5 of Patiala Pehewa Road is hereby allotted to you on lumpsum basis for an amount of Rs. 25.50 Lacs Rupees Twenty five lacs and fifty thousands with a time limit of 24 months from the date of issue of this letter companypled with the following companyditions. The said letter thereafter set out those companyditions. lt is, however, number necessary to set out these. The last two paragraphs of the said letter are relevant and read as follows PG NO 541 The work may be taken in hand immediately after getting the detailed structural drawing and designs duly approved by this Department. Please attend this office within 10 days to sign your agreement which is under preparation. This was signed by the Executive Engineer and the signatures appeared as follows Sd - 30/8 Executive Engineer, Construction Division No. 1, W.D. B R Br. Patiala. Endst. No Dated Copy of above is forwarded to 1 Sub Divisional Engineer, Const. Sub Division No. 5 P.W.D. B R Br., Patiala for information and necessary action. He is requested to get the work started immediately as per detailed terms and companyditions which may be thoroughly studied. Divisional Acctt. for information n a. Sd - Executive Engineer, Construction Division No. 1, W.D. B. R Br., Patiala. Dr. Chitale appearing for the respondent drew our attention to a letter signed by the Executive Engineer which reads as follows Regd. A.D. Endst. No. 4466 Dated 24.8.76 Copy companyfirmation by post is forwarded to M s Om Parkash Baldev Krishan, New Delhi-5 for their information and necessary action. Their tender for lumpsum amount of rupees thirtyone lacs and fifty thousands for companystruction of high level bridge over markanda river crossing Patiala Pehewa PG NO 542 road has been accepted. Please take the work in hand immediately. Regular sanction follows separately. Sd - Executive Engineer Shri R.L. Bansal, Divisional Accountant Construction, in his deposition before the Trial Court stated that there was numberdocument companycerning this companytract which had been issued or made in the name of the Governor of Punjab according to the records. He also admitted in his deposition that the letter of acceptance had number been issued in the name of the Governor of Punjab. He reiterated that he was entitled to issue acceptance on behalf of the Governor. It was urged on behalf of the appellants by Shri Nayar that a valid binding companytract might companye into existence even without a formal agreement duly signed by the parties. According to the learned advocate if one party made an offer in writing and the same was accepted by a letter to the first party, these two documents might be sufficient to spell out a companytract. Assuming that it is right, it is number necessary for the purpose of this appeal in the view we have taken to decide that the tender submitted and the letter sent by the Engineer did number create in the facts of this case a binding companytract. The acceptance letter, at least, must companyform to the requirements of Article 299 1 of the Constitution and since this letter was indisputably number in the name of the Governor, this companytention cannot be accepted. The acceptance letter or any work letter sent to the respondent had been written by the Executive Engineer on behalf of the Governor. Therefore, it is number possible to accept the companytention that there was a valid binding companytract. Shri Nayar further sought to urge that Article 299 was for the Governments protection in order to protect it against unauthorised companytracts being entered on behalf of the Government. In the instant case, according to Shri Nayar, the Executive Engineer had issued the tender and had accepted the tender, authority to accept the tender on behalf of the Governor, is thus established. Shri Nayar submitted that once that authority is established and it is made clear from the evidence that the authorities have acted on that basis, then it must be presumed that the companytract had been entered into in accordance with the provisions of Article 299 of the Constitution. ln view of the clear position in law, it is, however, number possible to accept this submission. Clause 1 of Article 299 of the Constitution provides as follows PG NO 543 All companytracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such companytracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise. In this case, the Executive Engineer has signed the companytract but numberhere in the companytract it was offered and accepted or expressed to be made in the name of the Governor. The companystitutional requirement enjoined in Clause 1 of Article 299 of the Constitution is based on public policy. This position has been made clear by this Court in The State of Bihar v. M s. Karam Chand Thapar Brothers Ltd., 1962 1 S.C.R. 827. There a dispute between the respondent and the Government of Bihar over the bills for the amount payable to the companypany in respect of the companystruction works carried out by it for the Government was referred to arbitration. Section 173 3 of the Government of India Act, 1935 provided as follows Subject to the provisions of this Act with respect to the Federal Railway authority, all companytracts made in the exercise of the executive authority of the Federation or of a province shall be expressed to be made by the Governor- General, or by the Governor of the Province. as the case may be, and all such companytracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor-General or Governor by such persons and in such manner as he may direct or authorise. This Court reiterated that under that section a companytract entered into by the Governor of a Province must satisfy three companyditions, namely, i it must be expressed to be made by the Governor ii it must be executed and iii the execution should be by such persons and in such manner as the Governor might direct or authorise. These three companyditions are required to be fulfilled. This position was reiterated by this Court again in Seth Bikhraj Jaipuria v. Union of India, l962 2 S.C.R. 880. This Court explained that three companyditions as mentioned in State of Bihar v. M S. Karam Chand Thapar supra had to be fulfilled, and further reiterated that the object of enacting these provisions was that the State should number be saddled with liability for unauthorised companytracts and, hence, it was provided that the companytracts must show on their faces that these were made by PG NO 544 the Governor-General and executed on his behalf in the manner prescribed by the person authorised. It is based on public policy. No question of waiver arises in such a situation. If once that position is reached, and that position is well-settled by the authorities over a long lapse of time, numberquestion of examining the purpose of this requirement arises. In Union of India v. A.L. Rallia Ram, 1964 3 S.C.R. 164, this Court again reiterated that the agreement under arbitration with the Government must be in accordance with section 175 3 of the Government of lndia Act, 1935. These principles were again reiterated by this Court in Timber Kashmir Pvt. Ltd. etc. etc. v. Conservator of Forests, Jammu Ors. etc., 1977 1 S.C.R. 937. There, the Court was companycerned with section 122 1 of the Jammu Kashmir Constitution which companyresponded to Article 299 1 of the Constitution of India. In that case all the three applications filed by the respondent State for a reference to an arbitrator under section 20 of the Jammu Kashmir Arbitrator Act, were dismissed by a single Judge of the Jammu Kashmir High Court on the ground that the arbitration clause was, in each case, a part of an agreement which was number duly executed in accordance with the provisions of section 122 1 of the Jammu Kashmir Constitution which companyresponded to those of Article 299 1 of the Constitution of India. But the Division Bench allowed the appeals holding that if companytracts were signed by the Conservator of Forests in companypliance with an order of the Government, the provisions of section 122 1 of the Jammu Kashmir Constitution companyld number be said to have been infringed. This Court held that the companytract companyld number be executed without the sanction. Nevertheless, if the sanction companyld be either expressly or impliedly given by or on behalf of the Government, as it companyld, and, if some acts of the Government companyld fasten some obligations upon the Government, the lessee companyld also be estopped from questioning the terms of the grant of the sanction even where there is numberwritten companytract executed to bind the lessee. But, once there has been a valid execution of lessee by duly authorised officers, the documents would be the best evidence of sanction. In that case, the companytracts were executed on behalf of the Government of Jammu Kashmir. The only question with which the Court was companycerned in that case was whether the companytracts executed by duly authorised officials had been proved or number. lt was held that it was so proved. In Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and others, 1978 1 S.C.R. 375 where this Court relied on a previous decision in Mulamchand v. State of Madhya Pradesh, 1968 3 S.C.R. 214 and reiterated that there cannot be any question of estoppel or PG NO 545 ratification in a case where there is companytravention of the provisions of Article 299 1 of the Constitution. The reason is that the provisions of section 175 3 of the Government of India Act and the companyresponding provisions of Article 299 1 of the Constitution have number been enacted for the sake of mere form but they have been enacted for safeguarding the Government against unauthorised companytracts. The provisions are embodied in section 175 3 of the Government of India Act and Article 299 1 of the Constitution on the ground of public policy-on the ground of protection of general public and these formalities cannot be waived or dispensed with. This Court again reiterated the three companyditions mentioned hereinbefore. The same principle was again reiterated by this Court in Union of India v. M s. Hanuman Oil Mills Ltd., and others, 1987 Suppl. S.C.C. 84. In the instant case, we have referred to letter dated 31st August, 1976 which towards the end stated that the parties to attend the office within 10 days to sign the agreement which is under preparation. lt is companymon ground that numbersuch agreement was signed In the aforesaid view of the matter the High Court was right in the view it took and the submissions made on behalf of the appellants cannot be entertained.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTlON Civil Appeal No. 2456 of 1986. From the Judgment and Order dated 12.7. 1982 of the Allahabad High Court in Sales Tax Revision No. 42 of 1982. C. Manchanda and Ashok K. Srivastava for the Appellant. The Judgment of the Court was delivered by SABYASACHl MUKHARJI, J. This is an appeal by leave from the judgment and order of the High Court of Allahabad, dated 12th July, 1982. The decision was rendered in a revision by the assessee which was directed against the order of the Sales Tax Tribunal. The year involved is the assessment year 1974-75. The assessee carried on the business of mining and sale of silica sand. The question was whether the sales tax companyld be charged from the assessee in respect of packing charges received by the assessee from the purchaser. The sales tax authorities as well as the Tribunal held that the assessee was liable to pay sales tax on the packing charges that he had received from the purchaser. From the facts found by the Tribunal it appears that there was a companytract for packing PG NO 687 the silica sand in gunny bags and packing charges had been realised on the basis of mt. tons though these were separately shown and were added up with the price of the silica sand and on the total sales tax was charged. Section 2 h of the Central Sales Tax Act, 1956 hereinafter called the Act provide as follows sale price means the amount payable to a dealer as companysideration for the sale of any goods, less any sum allowed as cash discount according to the practice numbermally prevailing the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the companyt of freight or delivery or the companyt of installation in cases where such companyt is separately charged. The tribunal categorically found that there was a companytract for packing the silica sand in sound gunny bags, hence,held that there was an implied agreement for sending silica in gunny bags though these companyld be sent loose in wagons. As mentioned hereinbefore, Section 2 h companytemplates sale price as the companysideration for the sale of any goods unless any sum allowed as cash discount according to the practice prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time before the delivery thereof other than the companyt of freight or delivery or the companyt of installation in cases where such companyt is separately charged. Hence, the short question is whether the price was charged for anything thing done in respect of the goods at the time of or before the delivery thereof. The Tribunal also found that packing was done at the request of the buyer and that it was a companyvenient mode of delivery. The buyers had given directions for the quality of packing and it appears from the order form this always done in respect of the goods for putting these in deliverable state and so the packing charges, according to the Tribunal,are exigible to tax in this case. The-Tribunal clearly came to the companyclusion that all the these expenses were incurred in order to put the goods in deliverable state prior to their delivery. As per the agreement these expenses were rightly included in the sale price and it companyld number be said that these were number part of the sale price. Hence the Tribunal held that the tax was rightly levied under the Act on the sale price so companyputed. PG NO 688 The High Court came to the companyclusion that the Tribunal had number recorded the finding that there was an implied agreement to sell the gunny bags by the assessee to its customers. Packing charges were mentioned and number the companyt of gunny bags. Packing charges for each metric ton obviously include labour charges. In view of the fact that the price of goods and the packing charges were separately charged, the High Court came- to the companyclusion that the packing charges companyld number be included in the sale price paid by the purchasers to the assessee. That is impugned in this appeal. We are of the opinion, in view of the facts found by the Tribunal which must be taken to be companyclusive, and in the light of Section 2 h of the Act, the High Court was in error. In the facts of this case such packing charges companyld be included. There was an agreement to sell the gunny bags, as found by the Tribunal. The price of silica was shown separately and the companyt of packing was also shown separately. In view of the definition of Section 2 h of the Act, anything which was an integral part included any sum charged for anything done by the dealer in respect of the goods, may form part but anything supplied separately pursuant to a separate order, directions or specifications to the purchaser companyld number form part of the sale price of the gunny bags. This was done in order to putting them in deliverable state and incidental to the same. In a slightly different state of facts this question came before this Court in Commissioner of Taxes, Assam v. Prabhat Marketing Co. Ltd., 19 STC 84. There, the respondent sold hydrogenated oil which was exempt from sales tax under the Assam Sales Tax Act, 1947. The question was whether the value of the companytainers in which hydrogenated oil was sold companyld be assessed to sales tax under the Act. The High Court held that the value of the companytainers was number assessable to sales tax unless separate price had been charged for the companytainers. On an appeal this Court held that the value of the companytainers was assessable to sales tax under the said Act if there was an express or implied agreement for the sale of such companytainers and the mere fact that the price of the companytainers was number separately fixed, made numberdifference to the assessment of sales tax. This Court, however, came to the companyclusion that where there was an agreement to sell packing material is a pure question of fact depending upon the circumstances of each case. In this case this Court asked the question that the sales tax authorities had to address themselves the question whether the parties having regard to the circumstances of the case, intended to sell or buy packing material and PG NO 689 whether the subject-matter in the companytext of sale, was only an exempted article or packing material did number form part of the bargain at all. In that being the principle and the fact that here packing in the gunny bags was done by the dealer in respect of the goods at the time of or before the delivery, in our opinion, the High Court was in error in the view it took. This Court had to companysider again this aspect of the matter in Jamana Flour Oil Mills P Ltd. v. State of Bihar, 65 STC 462. There this Court held that whether there was an implied agreement to sell packing material along with the products companytained therein, is a question of fact. In view of the principles enunciated in these two decisions, though the facts were different, and on the basis of the companyclusive findings recorded by the Tribunal that there was a companytract for packing the silica in sound gunny bags, the companyt of packing materials had been realised, we are clearly of the opinion that the High Court was in error. In the aforesaid facts and circumstances of the case the judgment and order of the High Court are set aside and the order of the Tribunal is restored.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition Civil Nos.1003- 1005 of 1984. Under Article 32 of the Constitution of India . PG NO 626 K. Garg, Pankaj Kalra and P.K. Jain for the Petitioners. C. Mahajan, Ms. A. Subhashini, C.V. Subba Rao, Grish Chander, S.K. Mehta, Dhruv Mehta, Aman Vachher, S.M. Sarin and Jagannath Goulay N.f. for the Respondents. The Judgments of the Court was delivered by VENKATARAMIAH, J. People belonging to the Scheduled Castes and the Scheduled Tribes and to other weaker sections of society in India are the zealously protected children of the Indian Constitution. Article 46 of the Constitution provides that the State shall promote with special care the educational and economic interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. While clause 1 of Article 15 of the Constitution provides that the State shall number discriminate against any citizen on grounds only of religion, race, caste. sex, place of birth or any of them, clause 4 of that Article provides that numberhing in the said Article or in clause 2 of Article 29 of the Constitution shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and the Scheduled Tribes. Simlarly, while clause 4 of Article 16 of the Constitution provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and clause 2 of the said Article provides that numbercitizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State, clause 4 of the said Article provides that numberhing in that Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is number adequately represented in the services under the State. Article 330 and Article 332 of the Constitution provide for reservation of seats for the Scheduled Castes and the Scheduled Tribes in the Lok Sabha and in the Legislative Assemblies of the States till such period as is provided in Article 334 of the Constitution. Article 335 of the Constitution, which is relevant for purposes of this case, provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into companysideration, companysistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in companynection with the affairs of the Union or of a State. PG NO 627 The present case is, however, one in which a companycession which had been extended to the employees belonging to the Scheduled Castes and the Scheduled Tribes by way of reservation of vacancies at the stage of promotion has been withdrawn in a rather companycealed way. Petitioners 1 and 2 in this Writ Petition are the P T Scheduled Caste Tribe Employees Welfare Assocation Regd. Delhi and the Federation of all India Scheduled Castes Scheduled Tribes Employees P T Department, New Delhi and Petitioner 3 is an employee in the Posts Telegraphs Department. By the letter bearing No. 27/2/71-Estt. SCT dated 27.11.1972 issued by the Department of Personnel, the Government companymunicated its policy regarding the reservations for the Scheduled Castes and the Scheduled Tribes in posts filled by promotion promotions on the basis of seniority subject to fitness. The said policy was adopted by the Government in supersession of the orders companytained in an earlier Government Order dated 11.7.1968. Under the said policy a reservation of 15 per cent of vacancies was made for the Scheduled Castes and 7-1/2 percent for the Scheduled Tribes wherever promotions were to be made on the basis of seniority subject to fitness, in appointments to all Class I, Class II, Class III and Class IV posts in grades or services in which the element of direct recruitment, if any, did number exceed 50 per cent. In order to implement the above reservation the Government directed the appointing authorities to maintain a separate 40-point roster to determine the number of reserved vacancies in a year in which points 1,8, 14, 22, 28 36 had to be reserved for the Scheduled Castes and points 4, 17 and 31 had to be reserved for the Scheduled Tribes. Detailed instructions were issued to the appointing authorities to make promotions in accordance with the directions companytained therein so that members belonging to the Scheduled Castes and the Scheduled Tribes companyld have an advantage of getting promotion to a higher cadre much earlier than the employees who did number belong to the Scheduled Castes and the Scheduled Tribes. By the letter of the Department of Personnel Administrative Reforms bearing O.M. No. 8/11/73-Estt. SCT dated 12.9. 1974 addressed to all the Ministries further instructions were issued with regard to the reservation of the Scheduled Castes and the Scheduled Tribes in posts filled by promotions appointments to Selection Grade posts directing reservation of 15 per cent of vacancies for Scheduled Castes and 7-1/2 per cent for Scheduled Tribes. As regards the Posts Telegraphs employees working under the P T Board, the Ministry of Communications by it letter No. 31- 19/74-PE-I dated 15.6. 1974 gave certain further directions with regard to the filling-up of posts by promotion companyferring certain other advantages on persons belonging to the Scheduled Castes and the Scheduled Tribes. The policy PG NO 628 of reservation companytained in the above three Government letters was companytinued till the year 1983 in the Post Telegraphs Department. It would appear that in the year 1983 an agreement was arrived at between the Ministry of Communications and certain associations of employees working in the Posts Telegraphs Department and as a companysequence of the said agreement a fresh order relating to the policy of promotion to be adopted in the Posts Telegraphs Department was issued in supersession of the scheme of reservation, which was being followed till then. The said New policy, the validity of which is challenged before us, is companytained in the letter bearing No. 31-26/83- PE-l dated 17. 12. 1983 addressed to all heads of circles. Under this new policy it was decided that with effect from 30.11.1983 all officials belonging to basic grades in Group C and Group D to which there was direct recruitment either from outside and or by means of limited companypetitive examination from lower cadres, and who had companypleted 16 years of service in that grade would be placed in the next higher grade. This policy, it is alleged, was introduced in order to remove the effects of stagnation of employees in a particular grade for nearly 20 to 23 years without being promoted to higher grade. It would appear that under the scheme which was prevailing prior to 30.11.1983 it was possible for members belonging to the Scheduled Castes and the Scheduled Tribes to secure promotion to the higher cadre within a period of 10 to 12 years while the other employees had to wait for nearly 20 to 23 years. Thus an advantage had been companyferred on the employees belonging to the Scheduled Castes and the Scheduled Tribes since they companyld secure promotion Within a shorter period. Under the new policy irrespective of the fact whether an employee belonged to the general category or to the category of the Scheduled Castes and the Scheduled Tribes he would gory of the Scheduled Castes and the Scheduled Tribes he would be able to get promotion to the higher cadre on the companypletion of 16 years. Thereby the companyparative advantage which the members belonging to the Scheduled Castes and the Scheduled Tribes were enjoying was taken away and all the employees, namely, the employees belonging to the Scheduled Castes, the Scheduled Tribes and to the other categories were placed at par. However, clause 6 of the said letter dated 17.12.1983 which companytained the new policy reads thus For promotions under the time-bound one promotion scheme the numbermal orders relating to reservation for SC ST companymunities will number apply unless any specific order in this regard is subsequently issued. PG NO 629 It is admitted that numberspecific order has been issued by the Government pursuant to clause 6 so far. But the earlier orders providing for reservation in favour of the Scheduled Castes and the Scheduled Tribes were made inapplicable. Aggrieved by the action taken by the Government in implementing the policy companytained in letter dated 23. 12. l983, which had the effect of depriving the members belonging to the Scheduled Castes and the Scheduled Tribes of the advantage which they were enjoying, the petitioners have filed this petition questioning the said action. The petition is resisted by the respondents. It is urged on behalf of the Government that the time-bound one promotion scheme companytained in the letter dated 23.12.83 was advantageous to all the employees since all of them would get automatically promoted to a higher cadre on companypleting 16 years of service in a cadre and that it had been issued with the companysent of the Federations of Employees of the Posts Telegraphs Department. It is number disputed that in many of the other departments of the Union Government the scheme of reservation of posts for the Scheduled Castes and the Scheduled Tribes is in vogue in cases of promotions from the lower grades to the higher grades when they are done on the basis of seniority subject to fitness and under the said policy the persons belonging to the Scheduled Castes and the Scheduled Tribes working in the other departments have been companyferred an extra advantage which was number available to the Candidates belonging to other categories and that in the Posts Telegraphs Department also the employees belonging to the Scheduled Castes and the Scheduled Tribes were enjoying a similar advantage before 30.11.1983 on which date the policy companytained in the letter dated 23.12.1983 companye into force. Even the letter dated 23.212.1983 while it sets at naught the numbermal orders relating to reservation for the Scheduled Casts and the Scheduled Tribes in the Posts Telegraphs Department in force in the other department provides for the issue of specific orders by the Government under which the members belonging to the Scheduled Castes the Scheduled Tribes companyld gain some extra advantage. Admittedly numbersuch order has been issued till today. The petitioners have prayed that a direction should be issued to the Government to issue specific order companyferring on them such an extra advantage. We feel that the claim made by the petitioners is fully justified in view of the fact that similar advantage is being enjoyed by persons belonging to the Scheduled Castes and the Scheduled Tribes in other Departments and only they have been deprived of it. Such deprivation violates the equality clause of the Constitution. While it may be true that numberwrit can be issued ordinarily companypeting the Government to make reservation under Article 16 4 which PG NO 630 is only an enabling clause, the circumstances in which the members belonging to the Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs Department are deprived of indirectly the advantage of such reservation which they were enjoying earlier while others who are similarly situated in the other departments are allowed to enjoy it make the action of Government discriminatory and invite intervention by this Court. One of the methods by which the Government can companyfer some extra advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in cases of this nature where promotion to higher cadre is a time-bound one is to direct that the employees belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on companypletion of a shorter period of service than what is prescribed for others. In this particular case it is open to the Government to direct that while all others would be entitled to be promoted to the higher cadre on companypletion of 16 years of service, the members belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on companypletion of, say, 12 or 13 years of service. There may be other methods of achieving the same result. The claim for companyferment of some extra advantage on the Scheduled Castes and the Scheduled Tribes employees working in the Posts Telegraphs Department which may be companymensurate with the extra advantage which members belonging to the Scheduled Castes and the Scheduled Tribes are enjoying in the other departments of the Government of the maintenance of efficiency in the service appear to be a reasonable one. In what way it should be done is a matter left to the discretion of the Government. This should be decided by the Government taking into companysideration all aspects of the case. We therefore, issue a direction to the Government of India to issue an order under clause 6 of the letter dated some additional advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in the Post Telegraphs Department companymensurate with similar advantages which are being enjoyed by the employees belonging to the Scheduled Castes and the Scheduled Tribes in the other departments of th Government of India. The Government shall issue such an order accordingly within four months from today. Any order that may be issued by the Government shall operate prospectively. All promotions that have been made so far pursuant to the policy companytained in the letter dated 23.12.1983 and that may be made hereafter till the date on PG NO 631 which the direction to be issued by the Government under clause 6 companyes into operation,shall however remain undisturbed. This petition is accordingly allowed.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Civil Miscellaneous Petition No. 18044 of 1980. IN Writ Petition No. 16093 of 1984. Under Article 32 of the Constitution of India . Tapash Ray. Ms. Pratibha Jain and S. K. Jain for the Petitioner-. Parasaran, Solicitor General, Kuldip Singh. Additional Solicitor Genera1 and Ms. A. Subhashini for the Respondent. The following Order of the Court was delivered O R D E R This is an application by Shri M.L. Jain, retired Judge of the Delhi Court questioning the companystitutional propriety and legality of the order issued by the Pay Accounts PG NO 498 Officer, Delhi Administrative High Court Miscellaneous , New Delhi dated July 12 1938 purporting to fix his pension at Rs.26,000 per annum and for an appropriate direction for re-determination of his pension and other pensionary benefits in view of the change in law brought about by High Court Judges Conditions of Service Amendment Acts, 1996 and 1988 Act Nos. 38 of 1986 and 20 Of 1986 . This order must be read in companytinuation of the earlier order delivered by this Court in M. L. Jain Anr v. Union of lndia, 19t3- 5 2 SCC 355 by which this Court made a direction for payment of pension to the petitioner at Rs.21,5000 per annum in view of the two ceilings then operating against him, viz a a ceiling under the Rajasthan Rules providing that the maximum amount of pension should number exceed Rs. 1,500 per annum and b that under cl. b of Paragraph 2 of Part 111 of the First Schedule of the High Court Judges Conditions of Service Act, 1954. According to the petitioner, in view of the change in law, the amount of pension payable to him has to be re- calculated and re-determined at Rs.41,600 per annum w.e.f. January, 1. 1986 which amount has to be further increased to Rs.46,100 per annum w.e.f. November 1, 1986 in place of the pension of Rs. 21,500 as earlier directed. he question hat falls of determination in this order is whether companysequent upon the improvement of the service companyditions including pension and other benefits by the High Court Judges Conditions of Service Amendment Acts, 1986 and 1988 and pursuant to the office Memoranda issued by the Government of India, Ministry of Personal, Public Grievances Pensions, Department of Pensions Pensioners welfare dated April 14, 1987 and April 16, 1987 the pension of the petitioner Shri M.L. Jain has o be re-calculated and e- determined at s. 41,600 per annum w.e.f. January 1, 1986 which amount has to be further inceases to Rs. 46,100 pew annum w.e.f. November 1,1986 in place of the pension s. 21,500 as ealiear directed In view of the impoance of the question involved, we requested Sri K Parasaran, learned Attorney General to assist the Court. We are greatly be holden to the Leaned Attorney General of the assistance that he has rendered. The facts are uncontroverted. The petitioner has had a long and distinguished career in judicial service extending over a period of 38 years and 9 months. including 9 years and 21 days as a Judge of the High Court. When the PG NO 499 petitioner was appointed as a Judge of the High Court of Rajasthan on July 1, 1975, he was a member of the Rajasthan Higher Judicial Service having been a District Sessions Judge for the period from November 9, 1970 to July 1, 1975. On his appointment as a Judge of the Rajasthan High Court, the petitioner opted, for the purpose of his pension, for Part III of the First Schedule to the High Court Judges Conditions of Service Act, 1954. On July 23, 1978 the petitioner was transferred as a Judge of the High Court of Delhi under Art. 222 1 of the Constitution. On July 24, 1978 the petitioner was sworn in as a Judge of the Delhi High Court and companytinued to hold that office till the date of his retirement on July 21, 1984. In order to appreciate the point in its true perspective, it is necessary to set out the relevant companystitutional and other statutory provisions as well as the changes brought about by the High Court Judges Conditions of Service Amendment Acts, 1986 and 1988, as also the Office Memoranda issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners Welfare dated April 14, 1987 and April 16, 1987 for upward revision of pension and rationalisation of the same. Art. 221 of the Constitution enacts Salaries etc. of Judges- 1 There shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule. Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule Provided that neither the allowances of a Judge number his rights in respect of leave of absence or pension shall be varied to his advantage after his appointment. Under cl. i every Judge of a Nigh Court is thus entitled to such salaries as may be determined by Parliament PG NO 500 by law. By cl. 2 such a Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament. Until such a law is made, every such Judge shall be entitled to such salaries, allowances and rights as are specified in the Second Schedule. The relevant provision relating to the petitioner Shri L. Jain is the one companytained in s. 15 1 b of the High Court Judges Conditions of Service Act, 1954 which is a law made by Parliament regulating his right to pension and it reads Every Judge a b who is number a member of the Indian Civil Service but has held any other pensionable civil post under the Union or a State, shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part III of the First Schedule It is unquestionable that while the salary of Judges of the High Court charged on the Consolidated Fund of the State, the pension of such High Court Judges is charged on the Consolidated Fund of lndia. Paragraph 2 of Part III of the First Schedule as amended by Act 35 of 1976, which was in force on July 1, 1975 when the petitioner was first appointed as a Judge or the Rajasthan High Court, was in these terms The pension payable to such a Judge shall be- a the pension to which he is entitled under the ordinary rules of his service if he had number been appointed a Judge, his service as a judge being treated as service therein for the purpose of calculating that pension and b a special additional pension of Rs. 700 per annum in respect of each companypleted year of service for pension but in numbercase such additional pension together with the additional or special pension, if any, to which he is entitled under the ordinary rules of his service shall exceed Rs.3,500 per annum. PG NO 501 By Act 36 of 1986 in cl. b of Paragraph 7 of Part III of the First Schedule of the Act, the special additional pension of Rs.700 has been raised to Rs. 1,600 and the ceiling of Rs.3,500 to Rs. 8,000 respectively w.e.f. November 1, 1986. There is however a proviso beneath cl. b which reads Provided that the pension under clause a and the additional pension under clause b together shall in numbercase exceed Rs. 54,000 per annum in the case of a Chief Justice and Rs. 48,000 per annum in the case of any other Judge. Rule 2 of the High Court Judges Rules, l956 as amended till March 18,1987 which governs all Service Judges, provides Conditions of service in certain cases- The Conditions of service of a Judge of a High Court for which numberexpress provision has been made in the High Court Judges Conditions of Service Act, 1954 shall be, and shall from the companymencement of the Constitution be deemed to have been, determined by the rules for the time being applicable to a member of the Indian Administrative Service holding the rank of Secretary to the Government of the State in which the principal seat of the High Court is situated Provided that, in the case of a a Judge of the High Court of Delhi, the companydition of service shall be determined by the rules for the time being applicable to a member of the Indian Administrative service on deputation to th Government of India and holding the rank of Joint Secretary to the Government of India stationed at New Delhi. It would be companyvenient at this stage to refer to the decisions taken by the Government of India, Ministry of Personnel, Public Grievances Pensions, Department of Pension Pensioners Welfare. On March 18, 1987 the Government of India by Resolution No. 2/13/87-PIC accepted the recommendations of the Fourth Central Pay Commission for upward revision of pension and pensionary benefits. It was applicable to all pension to all pensioners family pensioners who were drawing pension family pension under the C.S. Pension Rules, 1972. C.C.S. Extraordinary Pension Rules and the companyresponding rules applicable to Railway Pensioners and pensioners of All India Service. PG NO 502 In pursuance of the aforesaid Resolution, the Government of lndia, Ministry of Personnel, Public Grievances Pensions, Department of Pension Pensioners Welfare issued an Office Memorandum No. 2/1-87-PIC-II dated April 14, 1987 bringing about modifications in the rules regulating Pension, Death-cum-Retirement Gratuity and Family Pension under the C.C.S. Pension Rules, 1972, Rule 3.1 of the Rules as modified made the revised provisions applicable to Government servants who retired or died in harness on or after January 1, 1986. Rule 5.2 provided that pension shall be calculated at 50 of average emoluments in all cases instead of under the slab formula given in cl. a of sub-r. 2 of r. 49 of the Pension Rules. By a subsequent Office Memorandum dated April 16, 1987 the MInistry of Personnel, Public Grievances and Pension, Department of Pension and Pensioners Welfare issued a scheme for rationalisation of pension structure for pre-January 1, l986 pensioners. It applied to all pensioners belonging to the classes enumerated above, including officers of the Indian Civil Service who retired from service on or after January 1 1973. Paragraph 2.2. of the Office Memorandum provides that separate orders would be issued by the Ministry of Defence in regard to Armed Forces Pensioners Family Pensioners. Paragraph 2.3 is a provision with regard to retired Judges of the Supreme Court and the High Courts and it provides These orders do number also apply to retired High Court and Supreme Court Judges and other companystitutional statutory authorities whose pension etc. is governed by separate orders. Necessary orders in their case will be issued by the respective administrative authorities. Paragraph 5 of the aforesaid Office Memorandum provides for payment of additional benefit equal to the difference between half of the emoluments and the basic pension in view of re-calculation of pension at 50 of average monthly emoluments in place of the slab system. It further provides that there would be numberupper ceiling on the amount of pension number so worked out. On December 18, 1987 the Government of India, Ministry of Law Justice, Department of Justice purported to issue a letter addressed to 1 Accountants General, All States, 2 The Pay Accounts Officer, Supreme Court of India, New Delhi and 3 The Pay Accounts Officer No. XIV, Delhi Administration, New Delhi giving direction as to the manner in which the basic pension of the Supreme Court Judges and PG NO 503 High Court Judges governed by the provisions of Part III of the First Schedule to the High Court Supreme Court Judges Conditions of Service Act, 1954/1958 is to be determined, the relevant portion whereof reads The ordinary pension admissible to High Court Supreme Court Judges under para 2 a of Part-III of the First Schedule Schedule to the High Court Supreme Court Judges Conditions of Service Act, 1954/1958, respectively, may be revised with effect from 1. 1. 1986 as in the case of the employees of Central Government or from some other date, the respectively State Governments may decide to adopt these orders or an independent order issued by them, if any to grant the benefit of increased pension on similar lines to their employees including members of Higher Judicial Service. The said letter goes on to say This is subject to the companydition that the total pension including additional pension admissible to such Judges under para 2 a and b of Part-III of the First Schedule Schedule to the High Court Supreme Court Judges C S Act, 1954/1958 shall number exceed Rs.48,000 p.a. Rs.54,000 p.a. and Rs. 60,000 p.a. in the case of Judge, High Court, Chief Justice, High Court Judge, Supreme Court of India and the Chief Justice of India, respectively. We fail to appreciate the propriety of the aforesaid letter of the Ministry of Law Justice giving liberty to the different State Governments to deny the benefit of the revised pension to the Service Judges companysequent upon the enactment of Act 38/86 and 20/88 read along with the aforesaid Office Memoranda issued by the Government of India, Ministry of Personnel, Public Grievances Pensions, Department of Pension Pensioners Welfare dated April 14, 1987 and April 16, 1987 and r. 2 of the High Court Judges Rules, 1956. Virtually this means that the State Governments may or may number issue any orders in of Paragraph 2.3 of the Office Memorandum dated April 16, 1987 appointing a date for grant of revised pension, or appoint different dates for the grant of revised pension to the retired High Court Judges who had opted to be governed by Part III of the First Schedule of the Act. Such a direction, in our view, was companystitutionally impermissible as offending Act. 14 of the Constitution. It is tantamount to denial of equal treatment PG NO 504 to persons belonging to the same class without any national basis. It was urged on behalf of the petitioner that the Pay Accounts Officer should number have denied the petitioner the benefit of the higher pension he was entitled to in the light of the changed provisions of law and that paragraph 2.3 of the Memorandum had numberrelevance to the petitioners case because the petitioner, by reason of his transfer from the Rajasthan High Court to the Delhi High Court under Act. 222 of the Constitution became automatically a judge of the Delhi High Court and therefore he was governed by the first proviso to r. 2 of the High Court Judges Conditions of Service Rules, 1955 which provides that in the case of a Judge of the High Court of Delhi and a Judge of the High Court of Punjab Haryana, the companyditions of service shall be determined by the Rules for the time being applicable to a Member of Indian Administrative Service on deputation to the Government of India holding the rank of Joint Secretary to the Government of India stationed at New Delhi. It was urged by reason of this position the petitioner was entitled to the benefits of pension in restructured scale set out in the Memorandum. It was further stated that Iikewise the action of the Pay Accounts Officer in reckoning the basic pension of the petitioner at Rs. 1,500 per month as provided in companyumn 1 to the Table appended to the Memorandum, and number at Rs.2,925 merely on the strength of the earlier position numbericed in M. L. Jain s case, despite the changes brought about by Act 38 of 1986, and Act 20 of 1988 and in depriving him of the benefit of additional relief of Rs.250 per month w.e.f. January 1, 1986 was wholly misconceived and unwarranted. We number only found the companytentions of the petitioner to have force but also to be irrefutable ones. To bring out more forcefully how the governmental action is patently arbitrary and as to how he had been subjected to discriminatory treatment without there being any justifiable basis for it the petitioner brought to our numberice the higher rates of pension the Pay Accounts Officer had fixed for some other Judges of the Delhi High Court even though their overall period of service and their tenure of office as a Judge of the High Court was lesser than his. While the Pay Accounts Officer has fixed the pension of the petitioner at Rs. 26,000 per annum, the very same authority had fixed the pension of Shri J.D. Jain at Rs.46,340 and that of Shri D.R. Khanna at Rs.44,684 per annum who had also retired as Judges of the Delhi High Court. They had put lesser periods of total-service as well as service as High Court Judges. Shri D. Jain had put in judicial service for a period of 35 PG NO 505 years, 7 months and 19 days including 6 years 5 months and 2 days as a Judge of the Delhi High Court. Shri D.R. Khanna had a total period of judicial service of 34 years, 110 months and 25 days including 5 years, 11 months and 28 days as a Judge of that High Court. We must companyfess that it surpasses our companyprehension as to on what rational basis the Pay Accounts Officer deemed it just and proper to accord differential treatment to the petitioner and fixing his pension at the low figure of Rs.26,000 when other Judges of the same High Court who had put in lesser number of years of service were held entitled to pension at much higher rates. The State Government of Uttar Pradesh by its numberification number 14/1/39/84 CX 1 dated May 31, 1988 has brought about a change in cl. b of Paragraph 2 of Part III of the First Schedule and revised the rates of pension w.e.f. January 1, 1986 in terms of the aforesaid Memorandum. Accordingly, a Judge of the Allahabad High Court Shri J.P. Chaturvedi who, retired on February 7, 1981 had his pension fixed at Rs.46, 100 per annum. We are given to understand that he had put in much shorter period of service as companypared to the petitioner. We companymend the action of the State Government of Uttar Pradesh in issuing a Notification as abovesaid to clarify the position and to ensure the implementation of the change brought about in cl. b of Paragraph 1 of Part III of the First Schedule and would direct all the State Governments to issue orders in similar terms. The learned Attorney General with his usual fairness frankly companyceded that there is patent disparity in the pension fixed for the petitioner at Rs.26,000, Shri Kuldip Singh, learned Additional Solicitor General appearing on behalf of the Union of India assured us that the disparity disparity would be removed as expeditiously as possible and the authorities would endeavour to pay th difference to the petitioner without delay. The learned Attorney General was kind enough to say that he would advise the Government to bring about party between the pension drawn by the petitioner and the other Judges in India. We refrain from expressing any opinion as to the effect of lifting of the ceiling on that special additional pension Rs. 8,000 per annum placed by cl. b of paragraph 2 of Part III the First Schedule. The question really does number arise for our companysideration at the moment and is left open. In the result, C.M.P. No. 18044/88 is allowed. The impugned of the Pay Accounts Officer dated July 12, 1988 is quashed. We direct the Union of India as well as the Pay PG NO 506 Accounts Officer, Delhi Administration High Court Miscellaneous , New Delhi to re-fix the pension of the petitioner at Rs.4l,600 per annum w.e.f. January 1, 1986 and at Rs.46, 100 per annum w.e.f. November 1, 1986. We further direct that the arrears of the difference in the amount of pension be paid to the petitioner as expeditiously as possible and in any event, number later than two months from today. The petitioner shall also be entitled to all other companysequential benefits.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Special Leave Petition Civil No. 2391 of 1987. From the Judgment and Order dated 22.10.86 of the Bombay High Court in Appeal No. 439/82. B. Bhasme and A.S. Bhasme for the Petitioners. K. Gupta for the Respondents. The Judgment. of the Court was delivered by SABYASACHI MUKHARJI, J. The High Court of Bombay dismissed PG NO 641 PG NO 642 the challenge to the award in question. The award is an unreasoned one. The transactions between the parties started some time in 1974. The petitioners participated in the reference in 1979, without demur. In 1981, the award was made. No objection was taken at that time that the award was bad being an unreasoned one. The matter is pending for a long time. It is number desirable, in the interest of justice, to keep this matter pending because some cases are pending here on the question of the validity of unreasoned award per se. The parties participated in the arbitration. There is numberallegation of any violation of principles of natural justice. One of the companytentions in support of this application was that relevant documents had number been taken into companysideration. The High Court has pointed out on reading the award that it does number indicate that all relevant documents had number been taken into companysideration. On the facts of this case, from the records and on the face of the award there is numbermistake of law apparent on the face of the award or gross mistake of facts resulting in the miscarriage of justice or of equity. In the premises it would be unjust under Article 136 of the Constitution to interfere or keep the finding at bay. The Special Leave Petition fails and is, therefore, dismissed.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Transferred Case No.7 of 1987 In Transfer Petition No. 390 of 1986. Dr. Y.S Chitale, T .U. Mehta and R.P. Kapur for the Petitioners N.N. Keshwani, R.N. Keshwani, Ms. Madhu Moolchandani and K. Rajendra Chodhary for the Respondents. The Judgment of the Court was delivered by SEN, J. The principal question in companytroversy in this petition under Art. 226 of the Constitution filed by the Hindustan Petroleum Corporation Ltd., a Government of India undertaking, which has been transferred from the High Court of Bombay to this Court under Art. 139A Of the Constitution, is whether the petitioner is entitled to the protection of PG NO 48 s. 15A of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947, introduced by Maharashtra Act No. 17 of 1973 read with s. 5 of the Esso Acquisition of Undertakings in India Act, 1974. Put very briefly, the essential facts are these. The Esso Eastern Inc., a companypany organised and existing under the laws of the State of Belaware, U.S.A., was carrying on, in India the business of distributing and marketing petroleum products manufactured by Esso Standard Refining Company of India- Ltd., and Lube India Ltd and had, for that purpose, established places of business in India. The companypany had taken several fiats in the Metropolitan City of Greater Bombay and elsewhere for accommodating their employees including Flat No.35 in Block No.8 in the housing companyony known as Shyam Niwas situate at Warden Road, number called Bhulabhai Desai Road, Bombay on leave and licence basis for a period of one year in terms of an agreement in writing dated 26th November, 1968 from Smt. Nanki M. Malkani. respondent No. 2 herein. On 4th December. 1968 respondent No 1 Shyam Co-operative Housing Society Ltd. passed a Resolution admitting petitioner No. 2 T.J. Nansukhani, and employee of the companypany as a numberinal member of the society though he was number the licensee The companypany on 16th January, 1970 exercised the option of renewal of the licence for another year i.e. till 30th November 1970. On 29th November, 1971, respondent No. 2 Smt. Nanki M. Malkani addressed a letter to the companypany intimating that the agreement for leave and licence was due to expire on that date and accordingly the period of the said licence was renewed, yearly, from time to time to time years on the expiry of each term of licence i.e. on 30th November, 1972 and 30th November, 1972 and 30th November, 1973. In the meanwhile, the State Legislature of Maharashtra enacted Act No. 17 of 1973. The amendment Act also made companysequential changes to which we shall presently refer. Undoubtedly, the Esso Standard Inc. was in occupation of the flat in question as on 1st February, 1973 and thus acquired the status of a tenant under s. 15A of the Act. On 13th March. 1974. the Esso Acquisition of Undertakings in India Act, 1974 was brought into force. As from that date. the Central Government by virtue of sub-s. 1 of s. 5 of the Act was deemed to be the tenant of the flat in question. On 9th April. 1975, respondent No. 2 Smt. Nanki M. Malkani sent a companymunication to the petitioner affirming the terms and companyditions of the licence. Again, on 24th March 1975, she addressed a letter companyfirming that she had given the aforesaid flat to Esso Eastern Inc. in December 1968 on leave and licence basis and the petitoner PG NO 49 being the successor in tittle of that companypany had been occupying the flat as licensee on the same terms and companyditions. On 11th September, 1980, the society passed a resolution calling upon the petitioner Corporation to vacate the said premises and directing that respondent No. 2 Smt. Nanki M. Malkani should herself occupy the flat. Upon failure of the Corporation to vacate the premises, the society on 15th September, 1980 filed an application under s. 9I I of the Maharashtra Co-operative Societies Act, 1960 before the 3rd Co-operative Court, Bombay for eviction of the petitioner and its employee. On 7th January, 1981, petitioner No. I permitted another employee to occupy the flat. The 3rd Co-operative Court, Bombay after companysideration of the evidence adduced by the parties, by its well-reasoned judgment dated 6th June, 1983 dismissed the claims of the society holding inter alia that Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence as on 1st February, 1973 and thus got the protection available to a licensee under s. I5A of the Bombay Rent Act and the said protection companyld number be taken away merely by the society making a claim for eviction under s. 91 I of the Act. Aggrieved, the society went up in appeal to the Maharashtra State Co-operative Appellate Court which by its judgment dated 17th March, 19X4 allowed the appeal and decreed the claim of the society requiring petitioner No. 1 Hindustan Petroleum Corporation Ltd. to vacate Flat No. 35 in Block No. 8 of the society building with a further direction that respondent No. 2 Smt. Nanki M. Malkani should occupy the flat in question herself. I hereupon, the petitioner moved the High Court under Art. 226 of the Constitution for an appropriate writ, direction or order for quashing the impugned judgment and order passed by the Maharashtra State Co-operative Appellate Court. This petition mainly raises three questions. They are 1 Whether the Hindustan Petroleum Corporation Limited being a successor-in-interest of the Esso Eastern Inc. the licensee, was entitled to the protection of s. 15A of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, introduced by the Maharashtra Act No. 17 of 1973, having regard to the fact that the Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence as existing on 1st February 1973 2 Whether the Maharashtra State operative Appellate Court was justified in holding that a licence being purely personal. upOn acquisitiOn of the Esso Eastern Inc. by the Central Government under the Esso Acquisition of Undertakings in India Act, 1974, the agreement for leave and licence as existing on the appointed day i.e. 13th March, 1974 under s. 2 a of that Act, stood extinguished and therefore the right acquired by Esso PG NO 50 Eastern Inc. under s. 15A of the Bombay Rent Act of being a protected tenant in relation to the flat in question, companyld number stand transferred to, or be vested in, the Central Government under s. 3 of the Acquisition Act. Was it also justified in holding that although the Esso Eastern Inc. was deemed to be a tenant of the disputed flat under s. 15A of the Bombay Rent Act, the Central Government companyld number be deemed to have become the tenant thereof under sub-s. I of s. 5 of the Acquisition Act merely because prior to the enactment of s. ISA of the Bombay Rent Act the premises were held by Esso Eastern Inc. on an agreement for leave and licence? 3 Whether a claim for ejectment of an occupant of a flat in a companyperative housing society having been let into possession of the premises under an agreement for leave and licence executed between it and a member of the society, by virtue of its employee having become a numberinal member thereof, is a dispute touching the business of the society within the meaning of s. 9 1 of the Act. In the view that we take on the first two questions, there is numberneed to answer the third which is already companyered by the decision of this Court in O N. Bhatnagar v. Smt. Rukibai Narsindas Ors. . 1982 3 SCR 681. The statutory provisions bearing on these questions are set out below. The relevant provision in sub-s. I of s. 91 of the Act, prior to its amendment, provided 91 1 Notwithstanding anything companytained in any other law for the time being in force, any dispute touching the parties to the dispute to the Registrar if both the parties thereto are one or other of the following a a society b a member, past member or a person claiming through a member The definition of the term landlord as companytained in s. 5 3 of the Bombay Rent Act was amended to include in respect of a licensee deemed to be tenant by s. 15A, the licenser who has given such licence. The expression licensee as defined in sub-s. 4A thereof introduced by the Amending Act, insofar as material, reads as follows 4A licensee, in respect of any premises or any part thereof, means the person who is in occupation of the pre- PG NO 51 mises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a companyperative housing society registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960 but does number include a paying guest, a member of a family residing together, a person in the service or employment of the licensor etc and the expressions licence, licenser and premises given on licence shall be companystrued accordingly. Sub-s. 1 of s. 15A of the Bombay Rent, as introduced by the Maharashtra Act No. 17 of 1973 provides 15A 1 . Notwithstanding anything companytained elsewhere in this Act or anything companytrary in any other law for the time being in force, or in any companytract, where any person is on February 1. 1973 in occupation of any premises, or any part thereof which is number less than a room, as a licensee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation. Sec. 28 1 of the Act insofar as material reads. 28 1 . Notwithstanding anything companytained in any law and numberwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would number, but. for this provision be within its jurisdiction. a in Greater Bombay, the Court of Small Causes Bombay, aa shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim PG NO 52 or question arising out of this Act or any of its provisions and numberother companyrt shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. We must then refer to the relevant provisions of the Esso Eastern Inc. The avowed object and purpose of the Esso Acquisition of Undertakings in India Act, 1974, as reflected in the long title is to provide for the acquisition and transfer of the right, title and interest of Esso Eastern Inc., the foreign companypany, in relation to its undertakings in India with a view to ensuring companyordinated distribution and utilisation of petroleum products distributed and marketed in India by Esso Eastern Inc. and for matters companynected therewith or incidental thereto. The preamble to the Act is in these terms Whereas Esso Eastern Inc. a foreign companypany, is carrying on, in India, the business of distributing and marketing petroleum products manufactured by Esso Standard Refining Company of India Limited and Lube India Limited, and has, for that purpose, established places of business at Bombay and other places in India And whereas it is expedient in the public interest that the undertakings, in India, of Esso Eastern Inc. should he acquired in order to ensure that the ownership and companytrol of the petroleum products distributed and marketed in India by the said companypany are vested in the State and thereby so distributed as best to subserve the companymon good Section 3 of the Act provides Transfer and vesting in the Central Government of the undertakings of Esso in India--On the appointed day, the right, title and interest of Esso, in relation to its undertakings in India, shall stand transferred to and shall stand in, the Central Government. The Act received the assent of the President on the 13th March, 1974 and published on that day became the appointed day, as defined in s. 2 a of the Act. Sub-s. 1 of s. 5 provides Central Government to be lessee or tenant under certain circumstances-- l Where any property is held in India by Esso under any lease or under any right of tenancy PG NO 53 the Central Government shall on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property as if the lease or tenancy in relation to such property had been granted to the Central Government, and thereupon all the rights under such lease or tenancy shall be deemed to have been transferred to and vested in the Central Government. Section 7 1 provides that, numberwithstanding anything companytained in ss. 3 4 and 6, the Central Government may, if it is satisfied that a Government companypany is willing to companyply, or has companyplied, with such terms and companyditions as that Government may think fit to impose direct, by numberification, that the right, title and interest and the liabilities of Esso in relation to any undertaking in India shall, instead of companytinuing to vest in the Central Government, vest in the Government companypany either on the date of the numberification or on such earlier or later date number being a date earlier than the appointed day as may be specified in the numberification. The Act makes provision that if there was any dispute with regard to what is vested in the Central Government, the proper forum was the Central Government for taking a decision. Sec. 19 of the Act reads as under Power to remove difficulties--If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, number inconsistent with the provisions of this Act. remove the difficulty Provided that numbersuch order shall be made after the expiry of a period of two years from the appointed day. In exercise of the powers companyferred by sub-s. l of s. 7 of the Act, the Central Government, in the Ministry of Petroleum Chemicals issued a numberification No. GSR 131 F. dated 14th March 1974. that on being satisfied that Esso Standard Refining Company of India Limited? a Government companypany, is willing to companyply with the terms and India imposed by the Central Government, hereby directs that the right, title and interest and the liabilities of Esso Eastern Inc., in relation to its undertakings in l ndia, shall, instead of companytinuing to vest in the Central Government. vest, w.e.f. the 15th day of March, 1974, in Esso Standard Refining Company of India Limited. Indubitably. as on the appointed day i.e. 13th March, 1974 PG NO 54 under s. 2 a of the Acquisition Act, the Esso Eastern Inc. had acquired the status of a protected tenant under s. 15A of the Bombay Rent Act and the tenancy rights so acquired in relation to the flat in question stood transferred to, and became vested in, the Central Government. By virtue of the aforesaid numberification issued under s. 7 1 of the Act, the rights of tenancy in the 13 flat in question instead of companytinuing to vest in the Central Government became vested in Esso Standard Refining Company of India Limited, a Government of India undertaking, w.e.f. 15th March, 1974. It is also necessary to mention that the Central Government held, in the name of the President, 74 of the equity share capital of the Esso Standard Refining Company of India Limited, which therefore became a Government companypany as defined by s. 617 of the Companies Act, 1956. On 12th July, 1974 the Company Law Board, in exercise of the powers companyferred by sub-ss. 1 and 2 of s. 396 of the Companies Act, 1956, read with the numberification of the Government of India in the Department of Company Affairs No. GSR 443 E dated 18th October, 1972, made Lube India Limited a Esso Standard Refining companypany of India Limited Amalgamation Order, 1974. Cl. 3 of the said Order provided that as from the appointed day, the undertaking of Lube India Limited shall stand transferred to, and vest in, Esso Standard Refining Company of India Limited. As a result of the amalgamation of the two companypanies, the name of Esso Standard Refining Company of India Limited was changed to Hindustan Petroleum Corporation Limited. It is therefore evident that petition No. 1 Hindustan Petroleum Corporation Limited, a Government of India undertaking, is a successor- in-interest of Esso Eastern Inc. which acquired the status of a deemed tenant under s. ISA of the Bombay Rent Act, which right devolved on the Central Government under s. 6 1 of the Acquisition Act. Upon these facts and the statutory provisions, the 3rd Cooperative Court rightly companycluded as under Thus, it is clear that there was a subsisting licence in favour of opponent No. 3 as on 1.2.73. The definition Licensee as given in Section 5 4A of the Rent Act includes inter alia a person in occupation of premises of a companyoperative housing society. PG NO 55 My findings on this issue are that the opponent No. 3 has a right to the premises against opponent No. 1 as protected tenant under Section 15A of the Rent Act. In dealing with the question, it observed The Supreme Court has clearly observed that the protection given to a licensee under a valid licence as on 1.2.73 under Act 17 of the amended Rent Act is available to a licensee of any premises or any part thereof in a building vesting in or leased to a companyoperative housing society. This protection given to a licensee in the position mentioned above cannot be taken away merely by the society filing the case against the member and occupant for reliefs to the opponent member. The provisions of the two legislations are to be harmoniously interpreted and such harmonious interpretation is possible. In case the occupant of a premises gets protection under s. 15A of the Rent Act against the member, the society can implement the provisions of s. 2 l6 of the Maharashtra Co-operative Societies Act, 1960 by determining the rights of the member and admitting a new member for the premises. Hence, my finding on the second part of the issue are that the rights of opponent No. 3 cannot be determined without determining the rights of opponent No. I i.e. Nanki M. Malkani, a companypartner member in the suit premises. In view of these findings, the 3rd Co-operative Court held in favour of the petitioner companyporation and dismissed the claim for eviction filed by the society under s. 9 l of the Act. Curiously enough, while allowing the appeal, the State Appellate Court has observed as follows One thing is clear that Hindustan Petroleum took over the rights and liabilities of Esso Standard Eastern Co. We would like to point out that leave and licence agreement companyfers only a personal right to occupy that right cannot be transferred number it can be inherited by Hindustan Petroleum Corporation by virtue of the merger of Esso Company with Hindustan Petroleum Corporation. Under these circumstances it has to be numbered that as soon as the Esso PG NO 56 Standard Eastern Co. was taken over by Hindustan Petroleum Corporation, the rights under the leave and license agreement came to an end it cannot be said that it Hindustan Petroleum Corporation also took over the rights of Esso Standard Eastern Co. to occupy the flat under the leave and licence agreement. Again it observed At P. 299 of the record there is a letter dated 24.3.80 written by respondent No. 1 to the personal adviser of Hindustan Petroleum Corporation Ltd. In the first para of the said letter it is stated by respondent No. 1 that he has given the suit that to Esso Standard Eastern Inc. in December 1968 on leave and licence basis and that Hindustan Petroleum Corporation is the successor in title of the Esso Company and that Hindustan Petroleum Corporation is occupying the said flat Probably in ignorance of this legal position, the respondent No. I wrote the above mentioned letter dated 24. 3.80 to Hindustan Petroleum Corporation Even supposing that respondent No. I intended that respondent No. 3 should companytinue as a licensee after Esso Standard Eastern Co. was taken over by respondent No. 3 it has to be numbered that there was numberseparate leave and licence agreement with Hindustan Petroleum Corporation namely. respondent No. 3. Even assuming for the sake of argument that respondent No. I intended that the flat should be occupied on leave and licence basis by respondent No. 3 that leave and licence agreement was terminated by respondent No. I by the above mentioned letter. Further, it observed However there is absolutely numberevidence to show the licence was renewed, at any time. The evidence of the witness examined on behalf of respondent No. 2 clearly shows that there was numberrenewal of the leave and licence agreement respondent No. 3 the leave and licence agreement automatically came to an end under these circumstances we feel that the rights that were given under PG NO 57 the leave and licence agreement were number available to respondent No. 3 Dr. Y.S. Chitale, learned companynsel appearing for the petitioners rightly companytends that the findings reached by the Appellate Court are manifestly erroneous and have caused a grave miscarriage of justice. The finding that there was numbersubsisting licence existing as on 1st February, 1973 to attract the provisions of s. 15A of the Bombay Rent Act in the case of the petitioner--Corporation is vitiated by its failure to give effect to the admission companytained in the letter dated 24th March, 1980 written by respondent No. 2, Smt. Nanki M. Malkani which is to the effect I had given the above flat to the then Esso Standard Inc. in December 1968 on leave and licence basis. You as a successor in title of that companypany have been occupying the flat as licensee on the same terms and companyditions. As you and your predecessors in title are reputed organisation I had given the flat for your officers use in the expectation that you will return the flat. when l require it for my own use. Besides this letter, the learned companynsel for the petitioners drew our attention to a sheaf of letters exchanged between respondent No. 2 Smt. Nanki M. Malkani and the Hindustan Petroleum Corporation Ltd. showing that she accepted that there was subsisting agreement of leave and licence as late as 24th March, 1980 which must be necessary implication, give rise to the inference as to the existence of such a licence between its predecessor Esso Eastern Inc. as on 1st February, 1973 which companyferred on it the status of a protected tenant under s. 15A of the Act. Indeed, the companyrespondence shows that it was at the behest of respondent No. 2 that every time on the expiry of a term of licence it came to be renewed from year to year till s. 15A of the Bombay Rent Act was brought into force. Thereafter, the predecessor-in-interest of the petitioner, companyporation was deemed to be her tenant under s. I5A of the Bombay Rent Act. For instance, by letter dated 9th April, 1975 she wrote to the Hindustan Petroleum Corporation Ltd. that the above flat had been in its possession since December 1, 1968. Again, by letter dated 15th November, 1976, she wrote to the Corporation forwarding the original bill of the society in support of her demand for payment of enhanced taxes and PG NO 58 charges. In view of these admissions made in these letters and more particularly in the letter dated 29th November, 1971 to Esso Eastern Inc. which reads as under As the present agreement of leave and licence in regard to above flat is due to expire on 30th November, 1973 that is two years from hence, you would like me to give you an undertaking of renewal of this agreement to justify the expenditure being incurred by you number, the findings of the Appellate Court are clearly erroneous. On the other hand, it stands proved that Esso Eastern Inc. had acquired the status of deemed tenant or protected licensee under s. 15A of the Bombay Rent Act as on 1st February, 1973. The findings of the Appellate Court to the companytrary are therefore clearly erroneous. We are unable to sustain the view taken by the Appellate Court in number giving effect to sub-s. 1 of s. 5 which vested the tenancy rights in relation to the flat in question on the Central Government as from appointed day. While it is true that a licence being personal is number capable of being transferred there was numberwarrant for the assumption by the Appellate Court that the licence stood extinguished with the acquisition of the right, title and interest of Esso Eastern Inc. under s. 3 of the Acquisition Act. That Act came into force on 15th March, 1974 and in the meanwhile, the licensee Esso Eastern Inc. had already acquired the status of deemed tenant under s. 15A of the Bombay Rent Act admittedly, there was a subsisting licence as on 1st February, 1973. The Appellate Court has also failed to appreciate that the name of Esso Eastern Inc. was changed to Esso Eastern Inc. by a Certificate of Amendment dated/22nd December, 1970 vide a Resolution passed by the Board of Directors of the Corporation on 15th December, 1970. In view of all this, the finding of the Appellate Court that the Hindustan Petroleum Corporation Ltd. was entitled to the protection of s. 15A of the Bombay Rent Act clearly borders on traversity and can hardly be swtained. The Appellate Court was clearly in error in number appreciating that s. by 4. 3 of the Acquisition Act, the right, title and interest of Esso Eastern Inc. in relation to its undertakings in India, shall stand transferred to, and shall vest in, the Central Government as from the appointed day i.e. as from 13th March. 1974. Under sub-s. I of s. 5 thereof, the Central Government became the lessee or tenant, as the case may be. By sub-s. 2 thereof, on the expiry of the term of any or tenancy refereed to in sub-s. 1 , such lease or tenancy shall, if PG NO 59 so desired by the Central Government, be renewed on the same terms and companyditions on which the lease or tenancy was held by Esso immediately before the appointed day. By a numberification issued on the next date, the right, title and interest of the Central Government became vested in Esso Standard Refining Company of India Ltd., a Government companypany, w.e.f. 15th March, 1974. Furthermore, by reason of Lube India and Esso Standard Refining Company of India Ltd. Amalgamation Order, 1974 made by the Company Law Board under s. 396 1 2 of the Companies Act, 1956, the undertaking of Lube lndia Ltd. vested in Esso Standard Refining Company of India Ltd. and immediately upon such transfer, the name of Esso Standard Refining Company of lndia Ltd., stood changed to Hindustan Petroleum Corporation Ltd. In the premises, petitioner No. 1 Hindustan Petroleum Corporation Ltd. is clearly protected under s. 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act. 1947. In that view of the matter, we do number think it necessary to deal with the companytention as regards the applicability of s. 91 of the Maharashtra Cooperative Societies Act, 1960. All aspects arising out of the submissions as to the jurisdiction of the Registrar under s. 91 1 of the Act have already been companysidered by this Court on O.N. Bhatnagars case and we reiterate the principles laid down therein. In the result, the petition under Art. 226 of the Constitution succeeds and is allowed. I he judgment and order passed by the Maharashtra State Co-operative Appellate Court dated June 6, 1983 allowing the claim of respondent No. 1 Shyam Co-operative Housing Society for eviction of the petitioners as also the proceedings initiated by it under s. 91 of the Maharashtra Co-operative Societies Act.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 658 of 1988 From the Judgment and Order dated 18.2.1987 of the Central Administrative Tribunal Hyderabad in OA No. 522 of 1986. P. Rao and A. Subba Rao for the Appellant. N. Dwivedi, Ashok K. Srivastava and C.V.S. Rao for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by special leave and is directed against the decision of the Central Administrative Tribunal, Hyderabad bench, dismissing the claim of the appellant and rejecting his challenge to the order dated PG NO 7 28th of November, 1986, retiring the appellant from service under Article 459 h of the Civil Services Regulations. The order of the retirement impugned in the proceedings was to the following effect WHEREAS the President is of the opinion that it is in the public interest to do so. Now, THEREFORE, in exercise of the powers companyferred by Clause h of Article 459, of Civil Services Regulations, the President hereby retires Dr. J.K. Sinha, Scientist E, DLRL, Hyderabad with immediate effect, he having already attained the age of 50 years on 27th March, 1981. The President also directs that Dr. J.K. Sinha shall be paid a sum equivalent to the amount of his pay plus allowances for a period of 3 months calculated at the same rate at which he was drawing them immediately before his retirement. The appellant was born on 27th March, 1931, and took the Masters Degree in Science in Physics in 1953 and obtained Ph.D. in microwave Physics from the University of London in 1959. He also became a senior member of Institute of Electrical and Electronics Engineers, USA and a member of the Institute of Electrical Engineers, London. He acquired professional training in the Institute of Semi Conductor, Leningrad USSR, Leveder Institute of Physics, Moscow, and Rice University, Texas, USA. In August 1960, he was appointed as Senior Scientific Officer, Grade-I in the Defence Science Laboratory, Delhi and in 1969 was promoted as Principal Scientific Officer. In August, 1973, he was further promoted as Deputy Chief Scientific Officer and posted in Defence Electronics Research Laboratory, Hyderabad. While serving in the said post he was prematurely retired by the impugned order. Before the Tribunal the appellant companytended that he had a brilliant academic career and had a clean record of service his research projects had been highly praised and appreciated and he deserved promotion to the post of Director Scientist G F . The appellant was actually interviewed for the said post during May and June 1986. In February, 1986, he had made a representation to the authorities for redressal of personal grievances and while PG NO 8 suggesting for improvement in the laboratory he had pointed out regarding the defective functioning of the Institution. The authorities developed bias against the appellant. This led to his number getting selected for the post of Director and ultimately to the making of the impugned order. These allegations were companyntered by the Department. Before the Tribunal the service records of the appellant were produced. The Tribunal rejected the allegations of bias and mala fide and the appellants claim that the order of retirement was based upon extraneous companysideration and dismissed the appeal. The very companytentions have been reiterated before us by Mr. Rao appearing for the appellant. The Department made available for inspection at the hearing the service records from 1973 till his retirement in support of its stand that the guidelines prescribed for review for deciding whether an officer should be prematurely retired had been strictly followed and the decision to retire the appellant was taken in a bona fide and legitimate manner and without any bias or prejudice. Mr. Rao mainly emphasised that the appellant had a clean service record and, therefore, there was numberjustification to prematurely retire him. This submission is based upon the assumption that the appellants record of service is clean as he has number been companymunicated any adverse entry in his character roll. Mr. Dwivedi for the respondent refuted the assumption by stating that there were several entries by the authorities to indicate deficiencies and draw-backs in the appellants functioning and to support this submission he relied upon the service records. According to Mr. Dwivedi the entries are such that there was numberobligation to companymunicate the same under the prescribed guidelines. We may refer to some of the entries number ------------------------------------------------------------ Year Remarks ------------------------------------------------------------ 1975 I have number been too impressed with this officer who does number seem to fit into DLRL and its work. l agree with Director DLRL and CCRD E in their grading remarks . 1976 I have number been impressed with this Officer. I doubt if he fits in well with the work at DLRL. We will have to see how to redeploy him. This is number easy in a post oriented budget system. PG NO 9 1977 I am in full agreement with Shri in his companyments assessment companycerning this officer also with the grading of Reviewing Officer. He would be best suited for a preliminary Physics based and largely teaching oriented job. His promotion to DCSO and posting to DLRL was a direct result of the irrelevant system of Subject Pyramids, Vacancy based promotion defined by pure companysideration of ACRs. Thus one gets square pegs in round holes. It is this system which has been changed recently after great effort. The position as earlier operated was unfair in the long term for the officers also, as in this case. In principle Dr. Sinha would be a good man in the right place. 1979 An officer who thinks very much of himself but one who cannot claim to have done something substantial. I have suggested that he shifts to IAT but he has refused. 1980 From what I know of him, he merely talks but does numberhing very much. He refused to teach at IAT though qualified on papers. He is one of those whom we have to keep on as dead wood. 1981 I agree. I have numberhigh opinion of his work or as a man. The DRDO derives numberbenefit from him but our rules are such that we have to live with such people. 1982 He is an average officer. 1983 Performance is average and fair. 1984 I am totally disappointed with the officer. My predecessors have also had the same feeling. I tried to see whether he companyld be fit into MTRC Bangalore. Even for this he has to appear for an interview. His performance as far as I can see is mediocre and I accepts observation. He had stated he is in my opinion at the lowest limit of technical performance and managerial performance in DCRL Scientist E. PG NO 10 By the time the review was undertaken the report for the year 1985 was number ready mainly on account of the appellant number furnishing his self-assessment but the report which came latter indicated that he was graded as poor for that year. From the records we find that on June 9, 1980, the head of the establishment had written to the appellant to the following effect Reference your letter of 27th May, 1980. You will recall some time ago you sent me several companymunications and also saw me in person about your future interests I thought I had been able to give you a chance to expand on your interest, but you have turned it down. It is, therefore, number clear what exactly you want. If you want to take a dominant role in the microwave development and research and its related activities, this cannot be done purely on a personal basis it should be a part of the overall programme of the Organisation. I am, therefore, requesting Shri Narayana Rao to use you in whatever way he deems fit until a suitable post is found for you. On 17th April, 1986, the Director of Defence Electronics Research Laboratory, Hyderabad, had written a letter to the Director of Personnel, R D Organisation, Ministry of Defence, New Delhi, about the appellant, a companyy of which is on record. The letter makes grievance that the appellant is number-cooperative in the matter of submission of his self- assessment for the year 1985. It further stated I do number recommend him for promotion, due to the above mentioned remedial defects about which he has been told many time by me. For many years he has number been putting in even the minimum amount of effort which is expected of a person of his level. With Government number extending the services of Scientists Engineers upto 60 years, I feel that in the best interests of the Government, a careful study has to be made whether people of his calibre and capabilities are allowed to be companytinued in Government service. I regard his overall performance is poor and he companyes against the lowest 5 of the Sc.E in the laboratory. PG NO 11 The appellant has served under four companytrolling authorities and three of them are Scientists of international repute. These Scientists appear to have made a fair assessment of the appellants work and what is material is that there is unanimity in their companyclusion. Years back one of the entries had indicated that the appellant had become dead wood. The Tribunal rightly rejected the plea of mala fides. Quite appropriately, Mr. Rao did number reiterate that companytention. There companyld be numberreason why everyone in the Institution should turn hostile to the appellant. Mr. Rao had companytended that there was numbercommunication of adverse entries. Ordinarily when the entries relate to specific instances leading to adverse entries, the companymunication thereof is sent to the officer companycerned with a view to providing an opportunity for improvement of performance. The entries which we have extracted above are mostly based upon general assessment of the performance. As we have already pointed out, he was companymunicated years back the general disapproval of his method of working. We are satisfied that the review proceedings were in companysonance with the guidelines framed by the Government. The post in which the appellant was working was a responsible one and poor performance companyld number be tolerated. In Shyam Lal v. State of U.P. Union of India, 1955 1 SCR 26, a Constitution Bench had indicated that companypulsory retirement did number involve any stigma or implication of misbehaviour or incapacity. Ever since then by a catena of decisions, the power of companypulsory retirement and the procedure prescribed for taking of such action have been approved by this Court. It is unnecessary to refer to those cases. From the proceedings of the Review Committee, we find that the Committee took up the review of 19 officers and found the appellant alone liable for retirement. The record of the proceedings shows that even at Government level after the recommendation of review companymittee, the report was duly scrutinised. In our opinion, the Tribunal rightly came to the companyclusion that the order of companypulsory retirement was number open to challenge. The appeal is accordingly dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 537 of 1978. From the Judgment and Order dated 13.10.1977 of the Andhra Pradesh High Court in C . R . P . 250 of 1977 . P. Rao, K. Ram Kumar and Mrs. Janki Ramachandran for the Appellant . S. Nambiar and B. Parthasarthi for the Respondent. The Judgment ot the Court was delivered by NATARAJAN, J. This appeal by special leave directed against a judgment of the Andhra Pradesh High Court lies within a narrow companypass. The respondent landlord filed a petition under Section 10 3 of the Andhra Pradesh Buildings Lease, Rent and Eviction Control Act, 1960 for short the Act to seek the eviction of the tenant appellant from premises bearing No. 1-1-250 Chikkadpalli, Hyderabad. The appellant is running a pan shop and a hire cycle shop in the front room of the premises and residing in the rear portion. Besides the leased premises, the respondent owns the adjoining building bearing No. 1/1/249. In the said building the respondent was running a grocery shop in the ground floor and residing in the second and third floors subsequently companystructed by him. It would appear that the respondent has since changed PG NO 436 over his business to retail sale of liquor. On the ground of requirement of- additional space for the grocery shop, the respondent sought the eviction of the appellant. The Rent Controller held that the respondent was number entitled to an order of eviction either under Section 19 3 a iii or Section 10 3 c because the leased premises was a separate building and did number form part of the building in which the respondent was carrying on his business. In the appeal preferred by the respondent, the Chief Judge, City Small Cause Court, Hyderabad, took a different view of the matter and held that even though the leased premises had a separate municipal door number it can be treated as forming part of the building in the respondents occupation because both the buildings are owned by the second respondent and besides the two buildings are separated only by a single wall. For reaching such a companyclusion, the Appellate Authority followed the ratio laid down in Balaiah v. Lachaiah, AIR 1965 A.P. As the Appellate Authority further found that the requirement of additional space by the respondent was a bona fide one, the Appellate Authority allowed the appeal and ordered the eviction of the appellant. A civil revision filed by the appellant to the High Court did number meet with success and hence the appellant has preferred this appeal. Though the proceedings before the Rent Controller and the Appellate Authority were companyducted on the footing that the respondent was entitled to seek the appellant s eviction under Section 10 3 a iii as well as under Section 10 3 c it was companyceded before us by Mr. Nambiar, learned companynsel for the respondent that the tenants eviction was sought for only under Section 10 3 c vi requirement of additional space for the respondents business. In such circumstances the only factor for determination is whether the respondent can seek the appellants eviction from the tenanted building the ground he requires additional accommodation for his business. Before we proceed to deal with the question, it is necessary to state a few facts. Originally, a row of buildings companyprised in door-numbers 1-1-248 to 1-1-251 were owned by one R. Kistiyah and after him by one Rambai. The said Rambai sold the buildings in the row to different persons. The respondent and his brother were two of such purchasers and they purchased premises number 1-1-248 and l- 1- Subsequently, in a partition between them, premises No. 1-l-249 was allotted to the respondent and premises No. l- 1-248 was allotted to his brother. After the partition was effected, the respondent companystructed two storeys over his building by erecting companycrete pillars on both sides of hiS building. At that time, the suit premises bearing No. 1-1- 250 was owned by an advocate by name Sri S. Sitaram Rao. PG NO 437 When the companycrete pillars were erected, Sitaram Rao companyplained of encroachment by the respondent and eventually, the dispute was resolved by the respondent himself purchasing Sitaram Raos house viz. No. 1-1-250. After companystructing the two floors, the respondent shifted his residence to those floors and utilised the entire ground floor for his business. he appellant who was a tenant of the suit premises even before the respondent purchased it attorned his tenancy to the respondent. Under the Act, a landlord can seek the eviction of a tenant from a number-residential building under Section 10 3 a iii if he is number already occupying a number- residential building which is either his own or to the possession of which he is entitled or under Section 10 3 c by way of additional accommodation if the number-residential building occupied by him is number sufficient for the purpose of the business he is carrying on. Since we are companycerned in this appeal only with Section 10 3 c , we need extract only that clause which reads as under 10 3 c . A landlord who is occupying only a part of a building, whether residential or number-residential, may number- withstanding anything in clause a , apply to the Controller for an order directing any tenant occupying the whole or any portion or the remaining part v he building to put the landlord in possession thereof, if he requires additional accommodation for residential purpose or for purpose of a business which he is carrying on, as the case may be. Emphasis supplied . From a reading of clause c , it is obvious that provision has been made under that clause only to seek the eviction of a tenant occupying another portion or the remaining portion of the building in which the landlord is also residing or carrying on his business in one portion. Section 10 3 c of the Tamil Nadu Buildings Lease and Rent Control Act 1960 which is identically worded as Section 10 3 c of the Andhra Pradesh Buildings Rent, Eviction and Control Act came to be companystrued in a different companytext by this Court in Balaganesan Metals v, M.N. Shanmugham Chetty, JT 1987 S.C. 247 . It was held in that case that a landlord occupying only a part of a building for residential or number- residential purposes may seek the eviction of a tenant ocCupying the whole or any portion of the remaining part of the building if he requires additional accommodation for his residential or number-residential needs and that it is number necessary that there must be identical user of the leased portion by the tenant if the landlord wants to seek his eviction for his residential ar business needs. PG NO 438 In this case, the companytroversy centres around the question whether a landlord can invoke Section 10 3 c of the Act to seek the eviction of a tenant who is number occupying a portion of the building occupied by the landlord himself but is occupying another building belonging to the landlord. While the Rent Controller held that the two premises viz. 1/1/249 and 1/1/250 are separate and independent, the Appellate Authority has taken the view that by reason of the unity of ownership of the two buildings in the respondent and by reason of the two buildings being separated only by a single wall it can be said that the mulgi companystitutes additional accommodation to the appellant and the fact that the two mulgies bear different municipal numbers should number make any difference. The High Court has number companystrued the scope of Section 10 3 c but has sweepingly said that Whether both can be said to be same building or separate buildings it does number matter, if the respondent wants the premises bona fide as an additional accommodation whether it is a separate building or a portion of the same building, he can require it on that ground. companynsel for Before us it was canvassed by Mr. P.P. Rao, learned companynsel for the appellant that Section 10 3 c would entitle a landlord to seek the eviction of his tenant for purposes of additional accommodation for himself only if the portion occupied by the tenant forms part of the same building occupied by the landlord and that Section 10 3 c will number apply to a case where the landlord and the tenant re occupying different buildings even though the two buildings may be owned by the same landlord. Controverting this argument Mr. Nambiyar, learned companynsel for the respondent companytended that the premises occupied by the appellant, though assigned a separate municipal door number cannot be treated as an independent and separate building because both the buildings are owned by the respondent and secondly the leased premises are separated from door number l l/249 only by a single wall. On a companysideration of the matter, we find that the companytention of Mr. Nambiyar, which has found acceptance with the Appellate Court and the High Court is number at all a tenable one. What Section 10 3 c envisages is the oneness of the building and number the oneness of ownership of two different buildings, one occupied by the landlord and the other by the tenant. The significant words used in Section 10 3 c are the landlord who is occupying only a part of a PG NO 439 building and any tenant occupying the whole or any portion of the remaining part of the building. Surely numberone can say that two adjoining buildings bearing different door numbers, one occupied by the landlord and the other by the tenant would make them one and the same building if they are owned by one person and separate buildings if they are owned by two different persons. A practical test which can be applied to find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlords possession and enjoyment of the premises in his occupation being affected. Viewed in that manner, it can at once be seen that the leased premises in the appellants occupation can be independently sold and the purchaser delivered possession without the respondents possession of door number 1-1-249 being affected in any manner. As a matter of fact, the previous history of the building shows that before it was purchased by the respondent, it was owned by Sri Sitaram Rao and the respondent was owning only door number 1-1-249. Such being the case, merely because the appellant has acquired title to door number l- l-250 also, it can never be said that the building under the tenancy of the appellant became part and parcel of the respondents building number l- 1-29. Similarly, the fact that the two buildings are separated only by a single wall with numberintervening space between them would number alter the situation in any manner because the identity of two separate buildings is number to be judged on the basis of the buildings being separated by a single wall or by two separate walls with intervening space in between them. Section 10 3 c which occurred as Section 7 3 c in the Madras Buildings I ease and Rent Control Act 14 has been properly companystrued by Chandrasekhara Sastri, J. in M. Ramaswamy Naidu v. P. Venkateswarlu, Vol. 11 1961 1 W.R. page. 400. The learned judge has stated that Section 7 3 c applies only n a case where the landlord is occupying a part of a building and still requires the remaining part for the purpose ot his own business as additional accommodation. This decision has number been numbericed by the Appellate Authority and the High Court and they have proceeded solely on the basis that as per the ratio in Balaiah v. Lachaiah, supra the respondent is entitled to an order of eviction even under Section 10 3 a iii for additional accommodation despite the fact that he is in occupation of a building of his own. Mr. Nambiyar referred to the definition of the word building in Section 2 iii of the Act and argued that if PG NO 440 for the purposes of the Act, where the companytext warrants it, different portions of the same building can be treated as separate buildings, it should companyversely be held that if adjoining building are owned by the same person and one of them is in the occupation of the landlord and the other by a tenant, then for purposes of Section 10 3 c the two buildings should be treated as an integrated and companyposite building. We are unable to accept this argument because firstly the terms of Section 2 iii do number afford scope for such a companystruction and secondly the argument fails to take numbere of the purpose and object lying behind the definition of building in the manner in which the clause is worded. Section 2 iii has been provided so as to make the provisions of the Act applicable to the whole of the building as well as to parts of it depending upon whether the entirety of the building has been leased out to a tenant or different portions of it have been let out to different tenants. There is, therefore, numberroom or scope for the respondent to invoke Section 2 iii to companytend that two different premises should be treated as a single and integrated building for the purposes of the Act if the two buildings adjoin each other and are owned by the same person but under different occupation i.e. one by the landlord and the other by the tenant. Mr. Nambiyar then argued that if section 10 3 c is to be companystrued as being applicable only when different portions of the same building are in the occupation of the landlord as well as one or more tenants, it would result in a landlord like the respondent who is genuinely in need of additional accommodation being left with numberremedy whatever for securing additional accommodation for his business needs. We find it unnecessary to go into the merits of this submission because however genuine the respondent s need for additional accommodation may be and whatever be the hardship resulting to him by number-eviction of the appellant, we cannot grant any relief to the respondent under the Act as it number stands. As per the Act the relief of eviction of a tenant can be given to a landlord only under two situations viz. 1 where the landlord is number in occupation of a building of his own or to the possession of which he is entitled to by an order of eviction under Section 10 3 a iii and 2 where the landlord is in occupation of only a portion of his building and is bona fide in need of additional accommodation and another or the remaining portion of the building is in the occupation of a tenant or tenants by ordering his or their eviction under Section 10 3 c . The Legislature has number provided for Section 10 3 c being made applicable to a landlord where he owns adjoining buildings and is in occupation of only one of those two buildings and the tenant is in occupation of the other and the land-lords PG NO 441 bona fide in need of additional accommodation for his residential or business needs. If the hardship experienced by landlords similar to the respondent is to be alleviated, then it is for the Legislature to remedy the situation by making suitable amendments to the Act and it is number for the Court to read Section 10 3 c beyond its terms oblivious to the limitations companytained therein and hold that a separate tenanted building adjoining the building in the owners occupation would also form part of the latter building. In the light of our companyclusions, it follows that the judgment and order of the Appellate Authority and the High Court cannot be sustained and have to be set aside. In the result, the appeal succeeds and the order of the Rent Controller dismissing the respondents petition for eviction will stand restored.

Case appeal was accepted by the Supreme Court

CRIMINAL ORIGINAL JURISDICTlON Writ Petition Criminal Nos. 49 and 129 of 1987. Under Article 32 of the Constitution of India . PG NO 526 Nand Lal, Mrs. Bagga and S.K. Bagga for the Petitioner. The Judgment of the Court was delivered by THAKKAR, J. Constitutional validity of a part of a provision enjoining a police officer engaged in an investigation under Chapter XII of the Code of Criminal Procedure Cr.P.C. has been called into question. The provision which so enjoins an investigation officer is embodied in Section 172, Clause 1 whereof imposes the duty. It is a part of this provision namely clause 3 which is the target of the challenge made by one of the two accused in a Criminal case. The High Court having repulsed the challenge, the accused have approached this Court by way of the present petition in order to reiterate the challenge on the premise that the High Court had erred in sustaining the validity of the impugned provision. The analysis of Section 172, Clause 3 whereof has given rise to the challenge to its companystitutionally reveals That it embodies a companyplete scheme relating to the matter of maintaining a diary. Clause 1 imposes the obligation to do so and provides for the companytents thereof. The Court is empowered to call for such diaries to aid it in Section 172 3 --Neither the accused number his agents shall be entitled to call for such diaries, number shall he or the be entitled to see them merely because they are referred to by the Court but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the urpose of companytradicting such police officer. the provision of Section 161 or 145 as the case may be. of the Indian Evidence Act, 1872 shall apply. Section 161--Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it such party may, if he pleases, cross-examine the witness thereupon. Section 145--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved but if it is intended to companytradict him by the writing, his attention must, before the writing can be proved, called to those parts of it which are to be used for the purpose of companytradicting him. PG NO 527 inquiry or trial subject to the rider that it can number be used as evidence thereat. Merely because the Court calls for the diary, the accused or his agent can number claim the right to peruse it. The accused can peruse that particular part 2 of the diary in the companytext of Section 161 of the Indian Evidence Act or Section 145 thereof in case a if it is used by the police officer companycerned to refresh his memory or b if the Court uses it for companytradicting the police official companycerned. The High Court has repelled the plea by recourse to the reasoning reflected in the relevant passage extracted hereinbelow So far as Section 172 3 iS companycerned, the embargo on the right of the accused or his representative in calling for the diary or seeing any part of it is only a partial one and number absolute because if a part of the diary has been used by the police officer to refresh his memory or the companyrt uses it for the purpose of companytradicting such police officer, the provisions of Section 161 and 145 of the Indian Evidence Act,will be applicable. So far as the other parts are companycerned, the accused need number necessarily have a right of access to them because in a criminal trial or enquiry, whatever is sought to be proved against the accused, will have to be proved by the evidence other than the diary itself and the diary can only be used for a very limited purpose by the Court or the police officer as stated above. Even then, a safeguard has already been provided in the Section itself to protect the right of the accused. The investigating Officer deposes before the Court on the basis of the entries in the diary. If the accused or his companynsel thinks that he is stating something against the diary or is trying to hide something which may be in the diary he can put question in that respect to the Investigating Officer, and if the accused or his companynsel has any doubt about the veracity of the statement made by the Investigation Officer, PG NO 528 he may always request the companyrt to look into the diary and verify the facts and, this right of the accused can always be safeguarded. It is true that it is for the companyrt to decide whether the facts stated are borne out by the diary or number, but then this much reliance has always to be placed on the companyrt and it has to be trusted as it is trusted in the case under Section 123 of the Evidence Act in order to decide whether any privilege can be claimed with respect to the documents in question. Even according to the authorities relied upon by the learned companynsel for the petitioner pertaining to Section 123 of the Evidence Act, it is the right of the companyrt to decide whether the privileged document companytains any material affecting the public interest or a particular affair of the State, which need number be disclosed. When in the enquiry or trial, everything which may appear against the accused has to be established and brought before the Court by evidence other than the diary and the accused can have the benefit of cross-examining he witnesses and the companyrt has power to call for the diary and use it, of companyrse number as evidence but in aid of the enquiry or trial, I am clearly of the opinion, that the provisions under Section 172 3 Cr.P.C. cannot be said to be unconstitutional. We fully endorse the reasoning of the High Court and companycur with its companyclusion. We are of the opinion that the provision embodied in sub-section 3 of Section 172 of the Cr.P.C. cannot be characterised as unreasonable or arbitrary. Under sub-section 2 of section 172 Cr.P.C. the Court itself has the unfettered power to examine the entries in the diaries. This is a very important safeguard. The Legislature has reposed companyplete trust in the companyrt which is companyducting the inquiry or the trial. It has empowered the companyrt to call for any such relevant case diary, if there is any inconsistency or companytradiction arising in the companytext of the case dairy the Court can use the entries for the purpose of companytradicting the Police Officer as provided in sub-section 3 of Section 172 of the Cr.P.C. Ultimately there can be numberbetter custodian or guardian of the interest of justice than the Court trying the case. No companyrt will deny to itself the power to make use of the entries in the diary to the advantage of the accused by companytradicting the police officer with reference to the companytents of the diaries. In view of this safeguard, the charge of unreasonableness or arbitrariness cannot stand scrutiny. The PG NO 529 petitioners claim an unfetterred right to make roving inspection of the entries in the case diary regardless of whether these entries are used by the police officer companycerned to refresh his memory or regardless of the fact whether the companyrt has used these entries for the purpose of companytradicting such police-officer. It cannot be said that unless such unfetterred right is companyferred and recognised, the embargo engrafted in sub-section 3 of section 172 of the Cr.P.C. would fail to meet the test of reasonableness. For instance in the case diary there might be a numbere as regards the identity of the informant who gave some information which resulted in investigation into a particular aspect. Public Interest demands that such an entry is number made available to the accused for it might endanger the safety of the informants and it might deter the informants from giving any information to assist the investigating agency, as observed in Mohinder Singh v. Emperor, AIR 1932 Lahore page 103 104 The accused has numberright to insist upon a police witness referring to his diary in order to elicit information which is privileged. The companytents of the diary are number at the disposal of the defence and cannot be used except strictly in accordance with the provisions of Sections 162 and 172. Section 172 shows that witness may refresh his memory by reference to them but such use is at the discretion of the witness and the Judge, whose duty it is to ensure that the privilege attaching to them by statute is strictly enforced. and also as observed in Mahabirji Birajman Mandir v Prem Narain Shukla Ors, A.I.R. 1965 Allahabad p. 494. The case diary companytains number only the statements of witnesses recorded under s. 161 Cr. P.C. and the site plan or other documents prepared by the Investigating Officer, but also reports or observations of the Investigating Officer or his superiors. These reports are of a companyfidential nature and privilege can he claimed thereof. Further, the disclosure of the companytents of such reports cannot help any of the parties to the litigation . as the report invariably companytains the opinion of such officers and their opinion is inadmissible in evidence. The public interest requirement from the stand point of the need to ensure a fair trial for an accused is more than sufficiently met by the power companyferred on the companyrt, which is the ultimate custodian of the interest of justice and can PG NO 530 always be trusted to be vigilant to ensure that the interest of accused persons standing the trial, is fully safeguarded. This is a factor which must be accorded its due weight. There would be numberprejudice or failure of justice to the accused person since the companyrt can be trusted to look into the police diary for the purpose of protecting his interest. Therefore, the public interest requirement from the perspective of safeguarding the interest of all persons standing trial, is number companypromised. On the other hand the public interest requirement from the perspective of enabling the investigation agency to investigate the crime against the society in order that the interest of the companymunity to ensure that a culprit is traced and brought to book is also safeguarded. The argument inspired by the observations in Raj Narain s case 1975 3 S.C.R. p. 333 and S P Guptas case 1982 2 S.C.R. p. 365 at pp. 622, 624 in the companytext of claim for privilege in regard to section 123 of Evidence Act, which have numberdirect bearing, is also effectively answered in the light of the foregoing discussion as thePublic Interest aspect is also taken care of. In the ultimate analysis, it is number possible to sustain the plea of the petitioners, which is rooted in the mistrust of the companyrt itself, that the provision is unreasonable and arbitrary. There is also another dimension of the issue. Section 172 embodies a companyposite scheme. The duty cast under Clause 1 and the rider added by Clause 1 3 thereof from integral part of the scheme. Clause 3 cannot be struck down in isolation whilst retaining Clause 1 . The legislature in its wisdom has cast this obligation only subject to the rider. Clause 3 cannot be viewed in isolation. Under the circumstances, we companycur with the view of the High Court and repulse the challenge. These are the reasons which impelled us to dismiss the petitions.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2606/80, 6944/83, 3779/88 and 3780/88. PG NO 562 From the Judgments and Orders dated 23.1.80, 26.4.83, 22.11.82 and 1.8.1984 of the Allahabad High Court in C.M. Writ No. 549/1979 C.M.W.P. No. 6942/81, C.M.W.P. No. 8383 of 1989 and C.M.W.P. No. 11203/1980 respectively. N. Kacker, B.D. Aggarwal R.K. Jain, Dalip Tandon, Rajiv Dutta, K.K. Patel, K.K. Mohan, P.K. Jain, R.K. Khanna and Pankaj Kalra for the Appellants. Manoj Swarup, Ms. Lalita Kohli, Anil Kumar Gupta, S.K. Mehta, S.M. Sarin, Dhruv Mehta, Aman Vachher and R. Jagannath Goulay for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. The civil appeals as well as the special leave petitions raise a companymon question as to whether the provisions of the Uttar Pradesh Urban Buildings Regulation Of Letting, Rent and Eviction Act, Act number 13 of 1972, hereinafter referred to as the Act are applicable to cantonments situated in the State of Uttar Pradesh. Since the two civil appeals are already pending on the issue, we grant special leave in the special leave petitions as well and proceed to dispose of all the four matters by this companymon judgment. The main judgment of the High Court under companysideration is that in the case of Brij Sunder Kapoor v. Additional District Judge Ors., reported in 1980 All India Rent Cases 319 which answered the question in the affirmative. The Allahabad High Court has reiterated the same view i its latter decision in Lekh Raj v. 4th Addl. Dt. Judge, Meerut, AIR 1982 All. 265, which, we are told, is also under appeal to this Court. It is sufficient to set out certain brief facts in the matter of Brij Sunder Kapoor, C.A. 2606 of 1980 in order to appreciate the question of law that arises for companysideration. Jhansi is a cantonment in Uttar Pradesh. Brij Sunder Kapoor is a tenant of premises No. 103, Sadar Bazar, Jhansi of which respondent number 3 Bhagwan Das GUpta is the landlord. In 1975, the landlord Bhagwan Das Gupta filed an application before the prescribed authority under section 21 of the Act praying that he needed the above premises for his personal occupation and that the same may be released to him. The tenant companytested the application. The application was dismissed by the prescribed authority but allowed, on appeal, by the Additional District Judge. The tenant preferred a writ petition which has been dismissed by a learned single Judge of the Allahabad High Court and hence the present appeal. We are number companycerned with the factual PG NO 563 aspects of the companytroversy between the parties. The short point urged by learned companynsel before us, which is companymon to all these appeals and which was also argued unsucessfully before the High Court, was that the Act did number apply to cantonments in Uttar Pradesh and that, therefore, the order of release made by the appellate authority under section 21 of the said Act was a nullity. In order to appreciate the point urged by the learned companynsel for the appellants, it is necessary to set out at some length the history of tenancy legislation in the State of Uttar Pradesh. In this State, rent and eviction companytrol legislation was initiated by the United Provinces Temporary Control of Rent Eviction Ordinance promulgated on 1.10.1946. This Ordinance was followed by U.P. Act III of 1947 which was made retrospective with effect from 1.10.1946. Both the Act and the Ordinance applied to cantonment areas as well as other parts of the State. Subsequently, the above Act was amended by U.P. Amendment Act 44 of 1948. By this Act, cantonment areas were excluded from the purview of Act III of 1947. This amendment was introduced perhaps as it was felt that the cantonment areas were to be governed by the Cantonments House Accommodation Act, 1923 and that the simultaneous application of Act III of 1947 to cantonment areas may create problems. It appears that, subsequently, a number of representations were made by residents of cantonments for extending the provisions of Act III of 1947 to cantonment areas as well. Perhaps because of such representations, U.P. Ordinance 5 of 1949 was promulgated on 26th September, 1949. But this ordinance was allowed to lapse. In the meantime the Allahabad High Court in Smt. Ahmedi Begam v. District Magistrate, Agra, 1951 A.L.J. 669 took the view that the State Legislature was incompetent to regulate accommodation lying in cantonments since that was a subject on which Parliament alone was companypetent to legislate, a view which was subsequently been approved by this companyrt in Indu Bhushan Bose v. Rama Sundri Devi, 1978 I S.C.R. 443. Thereupon, Parliament enacted the U.P. Cantonments Control of Rent and Eviction Act, 1952 Act 10 of 1952 . Though this was an Act of Parliament, its operation was companyfined to cantonments in Uttar Pradesh. In 1957, Parliament enacted the Cantonments Extension of Rent Control Laws Act, 1957 Act XLVI of 1957 . Act 22 of 1972 gave it retrospective effect from 26.1.1950. It provided for the extension, to cantonments in each State, of PG NO 564 laws relating to the companytrol of rent and regulation of house accommodation prevalent in the particular State in respect of areas other than cantonments. The Statement of Objects and Reasons of this Act specifically states that the Act became necessary because the power to make laws with respect to rent companytrol and house accommodation in cantonment areas is exclusively vested in Parliament. Section 3 of this Act originally read thus The Central Government may by numberification in the official gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the companytrol of rent and regulation of house accommodation which is in force on the date of numberification in the State in which the cantonment is situated. The words on the date of the numberification in the section were omitted by section 3 of Central Act 22 of 1972 with full retrospective effect. The promulgation of this Act created a somewhat anomalous position so far as the State of U.P. was companycerned. As we have already mentioned, Act 10 of 1952 was already in force in the cantonment areas of the State and the issue of a numberification by the Central Government purporting to apply Act III of 947 also to the cantonments in U.P. would create companyplications. If Act III of 1947 had to be extended to cantonment areas in U.P. in place of Act 10 of 1952, it was necessary that the provisions of Act 10 of 1952 should be repealed by a parliamentary enactment. This was done by enacting the U.P. Cantonments Control of Rent and Eviction Repeal Act, 1971 Act 68 of 1971 . The object of passing the Act, as given in its long title. was to provide for the repeal of U.P. Act 10 of 1952. Section 2 of this Act reads as under On and from the date on which the United Provinces Temporary Control of Rent and Eviction Act, 1947 is extended by numberification under section 3 of the Cantonments Extension of Rent Control Laws Act, 1957 to the cantonments in the State of Uttar Pradesh, the Uttar Pradesh Cantonments Control of Rent and Eviction Act, 1952, Act l0 of 1952 shall stand repealed. It was only on April 3, 1972 that a numberification was issued by the Central Government under section 3 of Act XLVI of 1957 extending the provisions of U.P. Act III of 1947 to the cantonments in the State of Uttar Pradesh. But soon PG NO 565 after the above numberification was issued U.P. Act III of 1947 itself was repealed and replaced by U.P. Act 13 of 1972, which came into force on 15th July, 1972. This necessitated the issue of another numberification under section 3 of Act XLVI of 1957 extending the provisions of Act 13 of 1972 to the cantonments in Uttar Pradesh. This numberification dated 1.9.1973, and gazetted on 29.9.1973, reads as follows In exercise of the powers companyferred by section 3 of the Cantonments Extension of Rent Control Laws Act, 1957, Act 46 of 1957 , and in supersession of the numberification of the Government of India in the Ministry of Defence, No. R.O. 8, dated 3rd April, 1972, the Central Government hereby extends to all the cantonments in the State of Uttar Pradesh the U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 U.P. Act XIII of 1972 as in force on the date of this numberification, in the State of Uttar Pradesh with the following modifications, namely, It was in view of the above numberification that respondent No. 3 filed his application under section 21 of the said Act, which has given rise to the present proceedings. Three questions were posed by Shri S.N. Kacker who opened arguments for the appellants but unfortunately companyld number companyplete them due to his unexpected demise and Shri Agarwal who followed him. These were Does Act XLVI of 1957 apply to the State of U.P. at all in view of the fact that Act 10 of 1952, which was a detailed and elaborate enactment, companytained special provisions applicable to cantonments in this State? Did number the power of the Central Government under section 3 of Act XLVI of 1957 get exhausted when the numberification dated 3rd April, 1972 was issued, by which the provisions of Act III of 1947 were extended to cantonments in U.P.? If yes, was number the second numberification dated 1.9.1973 purporting to extend the provisions of Act 13 of 1972 to cantonments in U.P. illegal and number-est? iii Does number section 3 of Act XLVI of 1957 suffer from the vice of excessive delegation of legislative powers and PG NO 566 is it number companysequently void and inoperative? Apart from these principal questions, it was pointed out by Shri Tandon appearing for the petitioner in SLP No. 6944 of 1983 that, in his case, the landlord was trying to resort to provisions of Act 13 of 1972 as amended by Act 28 of 1976. It was submitted that, while Act 13 of 1972 as in force on 1.9.73 was extended to U.P. cantonments by the numberification dated 1.9.1973, there was numberfurther numberification applying the provisions of the Acts amending the same to the cantonments till 17.2.1982. It was therefore companytended that in any event the amended provisions would number be applicable to the cantonment areas of U.P. So far as the first companytention is companycerned, we do number think there is any substance in it. It is true that Act 1 of 1952 was a detailed statute, which was applicable to cantonments in the State of U.P. It is also true that this enactment which was a Central enactment companyld number be rendered inoperative by the mere issue of a numberification under section 3 of Act XLVI of 1957 and that it companyld be repealed or made inoperative only by an Act of Parliament. But in this case there is a parliamentary legislation which terminates the applicability of Act 10 of 1952 in Uttar Pradesh Cantonments. This is Act 68 of 1971. Section 2 of this Act has already been reproduced. It enacts that Act 10 of 1952 shall stand repealed in its application to the State of U.P. on and from the date on which Act III of 1947 was extended to the cantonment areas in the State by a numberification under section 3 of Act XLVI of 1957. As we have already mentioned, a numberification was issued on 3.4.1972 under section 3 of Act XLVI of 1957, extending the provisions of Act III of 1947, with certain modifications set out therein, to cantonments in the State of Uttar Pradesh. On and from 3rd April, 1972, therefore, Act 10 of 1952 ceased to apply to cantonments in the State of Uttar Pradesh. In view of this, there was, at least on and after that date, numberobstacle in the way of Act III of 1947 being operative in the cantonments of the State of U.P. as well. Perhaps releasing this, a companytention was put forward that Act XLVI of 1957, promulgated at a time when Act 10 of 1952 was in force in U.P., should be companystrued as an enactment applicable to all States in India other than the State of Uttar Pradesh. It is number possible to accept this companytention for two reasons. In the first place the language of the Act does number justify any such restriction. Secondly, since the Act has been given retrospective effect from 26.1.1950, it should be deemed to have been in force from that date. On that date Act 10 of 1952 was number in force in the State of P. and so the terms of Act 46 of 1957 would be applicable to companytonments in all States including U.P. This takes away PG NO 567 the entire basis of the argument. Again, there might have been some difficulty If, by a numberification under section 3 of this Act, the Central Government had sought to apply Act III of 1947 to cantonments in the State of Uttar Pradesh, without there being a repeal of Act 10 of 1952. But this possible repugnancy between two legislations operating in the State of Uttar Pradesh one by virtue of the numberification under section 3 of Act 46 of 1957 and the other by virtue of the provisions of Act 10 of 1952 has been obviated by the provisions of Act 68 of 1971. These provisions have rendered Act 10 of 1952 inoperative as and from 3.4.1972 leaving the provisions of Act III of 1947 in the field only until it was replaced by Act 13 of 1972. One more, somewhat different, argument which seems to have been addressed before the High Court on the basis of Act 68 of 1971 is that, on the issue of the numberification dated 3.4.1972, the provisions of Act III of 1947, subject to the modifications mentioned in the numberification, stood bodily lifted and incorporated in Act 68 of 1971 and that the repeal thereafter, of Act III of 1947 did number have any bearing in respect of cantonments in the State of Uttar Pradesh. In other words, the argument is that Act Ill of 1947 companytinues, to be in operation in the cantonment areas even number. The appellants obviously have in mind the principles of referential legislation by incorporation outlined in Mahindra Mahindra v. Union, 1974 2 SCR 1038 and other cases. We, agree, however, with the High Court that s. 2 of Act 68 of 1971 is number an instance of legislation by incorporation. The only purpose of 1947 to cantonment areas was already there in Act XLVI of 1957. But there was a hurdle in the issue of a numberification under s. 3 of that Act in that Act 10 of 1952 was already in force in such areas. Act 68 of 1971 merely removed this obstacle and enacted that Act 10 of 1952 would stand repealed on the date of issue of the numberification under s. Once such a numberification was issued, Act 68 of 1971 had served Its purpose out and had numberfurther impact. It did number have the further effect of incorporating within itself the provisions of the extended law. If that had been the intention, s. 2 of Act 68 of 1971, as pointed out by the High Court, would have read something like this On and from the date of companymencement of this Act, the provisions of U.P. Act III of 1947 shall be applicable to be cantonments in the State of Uttar Pradesh and Act 10 of 1952 shall stand repealed. PG NO 568 It will be numbericed that the above argument also overlooks the effect of later numberifications under s. 3 which have superseded the effect of the one dated 3.4.1972. To get over this difficulty, it is argued that s. 3 empowers the Government to issue a numberification thereunder only once and that, once the numberification dated 3.4.1972 was issued, the power got exhausted. The further numberifications dated 1.9.1973 and 17.2.1982 are, it is said, null and void. The argument is based on a short passage in Lachmi Narain v. Union, 1976 2 SCR 785. This case has a relevance on the third companytention also to which we shall advert later. So far as the aspect presently under discussion is companycerned, its relevance arises in this way. In that case, s. 2 of the Part C States Laws Act, 1950 empowered the Central Government to extend, by numberification in the official gazette, to any Part C State or part of it, any enactment in a Part A State. The Central Government, in exercise of this power, issued a numberification in 1951, extending the provisions of the Bengal Finance Sales Tax Act, l941 to the then Part C State of Delhi with certain modifications set out in s. 6. In 1957, the Central Government issued another numberification, again in purported exercise of the powers companyferred by s. 2, by which an additional modification of s. 6 of the Bengal Act was introduced in the 1951 numberification as a result of which certain exemptions available to the petitioner were withdrawn at shorter numberice than was permissible under the modifications numberified in I951. The numberification of 1957 was held to be invalid and ineffective on several grounds, one of which was thus stated at page 801 The power given by s. 2 exhausts itself on extension of the enactment, it cannot be exercised be repeatedly or sub-sequently to such extension. It Can be exercised only once simultaneously with the extension of the enactment. This is one dimension of the statutory limits which circumscribe the power. This was elaborated further by the learned Judge, Sarkaria, J. at p. 802, companytrasting a clause of the kind under companysideration with a Removal of Difficulty Clause which permits removal of difficulties felt in the operation of an Act from time to time. The learned Judge observed Firstly, the power has number been exercised companytemporaneously with the extension or for the purposes of the extension of the Bengal Act to Delhi. The power given by s. 2 of the Laws Act had exhausted itself when the Bengal Act was extended, with some alterations, to Delhi by PG NO 569 Notification dated 28.4.1951. The impugned numberification has been issued on 7.12.1957, more than six and a half years after the extension. There is numberhing in the opinion of this Court rendered in Re Delhi Laws Act supra to support Mr. B. Sens companytention that the power given by s. 2 companyld be validly exercised within one year after the extension. What appears in the opinion of Fazal Ali J. at page 850, is merely a quotation from the report of the Committee on Ministers Powers which companysidered the propriety of the legislative practice of inserting a Removal of Difficulty Clause in Acts of British Parliament, empowering the executive to modify the Act itself so far as necessary for origining it into operation. This device was adversely companymented upon. While some critics companyceded that this device is partly a draftsmans insurance policy, in case he has overlooked something e.g. Sir Thomas Carr, page 44 of his book companycerning English Administrative Law , others frowned upon it, and nicknamed it as Henry VIII Clause after the British Monarch who was a numberorious personification of absolute despotism. It was in this perspective that the Com- mittee on Ministers Powers examined this practice and recommended first, that the adoption of such a clause ought on each occasion when it is, on the initiative of the Minister in charge of the Bill, proposed to Parliament to be justified by him upto the essential. It can only be essential for the limited purpose of bringing an Act into operation and it should accordingly be in most precise language restricted to those purely machinery arrangements vitally requisite for that purpose and the clause should always companytain a maximum time-limit of one year after which the power should lapse. It may be seen that the time-limit of one year within which the power under a Henry VIII Clause should be exercisable, was only a recommendation, and is number an inherent attribute of such power. In one sense, the power of extension-cum-modification given under s. 2 of the Laws Act and the power of modification and adaptation companyferred under PG NO 570 a usual Henry VIII Clause are kindred powers of fractional legislation, delegated by the legislature within narrow circumscribed limits. But there is one significant difference between the two. While the power under s. 2 can be exercised only once when the Act is extended, that under a Henry VIII Clause can be invoked, if there is numberhing to the companytrary in the clause--more than once, on the arising of a difficulty when the Act is operative. That is to say, the power under such a clause can be exercised whenever a difficulty arises in the working of the Act after its enforcement, subject of companyrse to the time-limit, if any, for its exercise specified in the statute. Thus, anything said in Re Delhi Laws Act, supra , in regard to the time-limit for the exercise of power under a Henry VIII Clause, does number hold good in the case of the power given by s. 2 of the Laws Act. Fazl Ali J., did number say anything indicating that the power in question can be exercised within one year of the extension. On the companytrary, the learned Judge expressed in unequivocal terms, at page 849 Once the Act became operative any defect in its provision cannot be removed until amending legislation is passed. Basing himself on this passage, learned companynsel companytended that, once the numberification dated 3rd April, 1972 was issued, the power under s. 3 had got exhausted, and the section companyld number have been invoked by the Central Government once again to issue the numberification of Ist September, 1973 extending Act 13 of 1972 to the cantonments of U.P. It will be at once clear that there is a basic difference between the situation in Lachmi Narain supra and that in the present case. In both cases, the power companyferred is to extend the provisions of another Act with modifications companysidered necessary. In Lachmi Narain this had been done by the 1951 numberification. The Bengal Finance Sales Tax Act, had been extended to Delhi with certain modifications. The object of the 1957 numberification was number to extend a Part A legislation to Delhi it was to modify the terms of an extension numberified earlier. This was held to be impermissive in as much as all that the section permitted was an extension of the laws of a part A State to Delhi, which, ex facie, had already been done in 1951. Here the nature of the legislation in question is totally different. As we shall explain later, the whole purpose of PG NO 571 Act XLVI of 1947 was to ensure that the cantonment areas in a State have the same rent laws as the other areas thereof. This when Act III of 1947 ceased to be in force in the rest of the State, numberpurpose would be served by its companytinuing in force in the cantonment areas alone. So also when the provisions of the law in force in the State got amended, there should be a power to extend the amended law in the cantonment. This was, obviously, the reason why Act 22 of 1972 amended S. 3 of Act XLVI of 1957 to omit the words on the date of the numberification retrospectively. The provisions of S. 3 of the Act XLVI of 1957 should, in the circumstances be companystrued so as to achieve this purpose and as enabling the Central Government to issue numberifications from time to time and number as exhausted by a single invocation as in the case of the statute companysidered in the Delhi Laws Act case, supra . S. 3 companyld, therefore, be invoked from time to time as occasion arise and the numberifications dated 1.9.1973 and 17.2.1982 are valid and intra vires. In such a situation, we think, the limitation suggested in the above decision will number operate. On the other hand, the provisions of s. 14 and s. 21 of the General Clauses Act will apply and it will be open to the Government to extend another legislation or further legislations to cantonments in place of the one that had been repealed. The above companyclusion can also be supported on the ratio of decision in Gurcharan Singh and Others v. V.K. Kaushal, 1980 4 S.C.C. 244, also a case companycerned with numberifications under s. 3 of Act XLVI of 1957. In exercise of this power the Central Government issued on 2 1.11.1969 a numberification extending the East Punjab Rent Restriction Act, 1949, to cantonments in the State of Punjab Haryana Subsequently, after the amendment of s. 3 of Act XLVI of 1957 by Act 22 of 1972, another numberification was issued, on 24.1 1974, superseding the earlier numberification and extending the East Punjab Act afresh to cantonments in the State of Punjab Haryana with a modification of s. 1 3 of the said Act with retrospective effect from 26.1 1950. Upholding the validity of this numberification and repelling an argument similar to the one number advanced before us, the Court observed Two points are raised on behalf of the appellants against that companyclusion. The first is that the power under section 3 of the Cantonments Extension of Rent Control Laws Act, 1957 having been exercised once, that is to say, by the numberification dated November 21, 1969, the power of extension stood exhausted and companyld number be availed of again, and therefore the Notification dated January 24, 1974 was with-our statutory sanction and invalid We are referred to PG NO 572 Lachmi Narain v. Union of India, 1976 2 SCR 785. That was a case where this Court held that a numberification under Section 2 Part C States Laws Act, 1950 having been issued in 1951 by the Central Government extending the Bengal Finance Sales Tax Act, 1941 to the State of Delhi, the power given by section 2 exhausted itself on the extension of the enactment and companyld number be exercised again to enable the issue of a fresh numberification modifying the terms in which the Bengal Act was extended. The case is clearly distinguishable. The power under which the numberification dated January 24, 1974 has been issued is a separate and distinct power from that under which the numberification dated November 21, 1969 was made. The power number exercised passed into the Cantonments Extension of Rent Control Laws Act, 1957 when it was amended in 1972. In its nature and quality it is number identifiable with the power vested under the unamended Act. A power companyferred by statute is distinguished by the character and companytent of its essential companyponents. If one or more material companyponents characterising the power cannot be identified with the material companyponents of another, they are two different and distinct powers. Although broadly the power envisaged in section 3 of the amended Cantonments Extension of Rent Control Laws Act, 1957 is a power of extension even as it was under the unamended Act, there is a vital qualitative difference between the two. The power under the unamended Act was a limited power. It companyld operate prospectively only. There was numberchoice in the matter. After amendment, the Act provided for a power which companyld be exercised retrospectively. The power extended to giving retrospective effect to an enactment in force in the State in the form in which that enactment was in force on the date on which the extension was made. It was a power whose reach and companyer extended far beyond what the power under the unamended Act companyld achieve. We are of the view that in issuing the numberification dated January 24, 1974 and thereby extending the East Punjab Urban Rent Restriction Act to the Ambala Cantonment retrospectively with effect from January 26, 1950, the Central Government exercised a power number available to it when it issued the numberification dated November 21, 1969. The companytention that the issue of the numberification of January 24, PG NO 573 1974 amounted to a further exercise of power companyferred by section 3 of the Cantonments Extension of Rent Control Laws Act, 1957, under which the earlier numberification was issued is without force and must be rejected. underlining ours This principle will also apply in the present case for, while the numberification dated 3.4.1972 was issued in exercise of the power under the unamended s. 3, the one dated 1.9.1973 was issued in exercise of the new power available after the amendment of Act 22 of 1972 which came into force on 2nd June, 1972, though there is a distinction between the two cases in that the latter numberification, unlike the second numberification in the other case, did number purport to give any retrospective effect to the extended legislation. It should be mentioned here that numberification dated 1.9.1973 extended to the cantonment areas only the provisions of Act XIII of 1972 as they stood on that date. It was only on 17.2.1982 that a further numberification was issued superseding the numberification dated 1.9.1973 by which the provisions of Act XIII of 1972 as in force in the State of Uttar Pradesh were also extended to the cantonment areas. The purpose of this numberification obviously was that, since there had been amendments to Act XIII of 1972 in 1974 and again in i976, it was necessary and desirable That the amended provisions should also be extended to the cantonment areas. The question raised above on behalf of the appellants regarding the validity of the numberification dated 1.9.1973, has to be companysidered also in the companytext of this numberification dated 17.12.1982. For the reasons discussed above, we are of the opinion that the Central Government acted within its powers in issuing the subsequent numberification dated 17.2.1982 as well. This also is number a case like the one in Lachmi Narain v. Union, l976 2 SCR 785, where the purpose of the second numberification was to modify without any provocation the companytents of the first numberification issued for the purposes of extension. Here the subsequent numberification became necessary because subsequently the enactments had amended the provisions of the Act, which had been extended previously. Moreover. as the original Act l3 of 1972 has already been extended, the real purpose of this numberification was to extend the provisions of Act 19 of 1974 and Act 28 of 1976 also to those areas. In our view, the provisions of sections 14 and 21 of the General Clauses Act, 1897, clearly apply for this reason as well as for the reason given in Gurcharan Singhs case. The validity of the numberification dated 17.2.1982 is, therefore, upheld. PG NO 574 Shri S.K. Mehta also companytended that, even if the numberification of l.9.1973 is left out of account, the numberification of 3.4. 1972 was itself sufficient to achieve the present purpose. He submitted that, since Act 13 of 1972 repealed and re-enacted the provisions of Act Ill of 1947, all references in Act 28 of 1971 as well as in the numberification dated 3.4.1972 to Act III of 1947 and its provisions should be companystrued as references to Act 13 of 1972 and its companyresponding provisions as amended from time to time. He relied on S. 8 of the General Clauses Act. In the view we have taken above, we companysider it unnecessary to deal with this companytention or express any opinion thereon. Now to turn to the principal companytention in the case the companytention is that Act XLVI of 1957 does number itself enact any provisions in respect of house accommodation in the cantonment areas of U.P. Section 3 of Act XLVI of 1957 purports only to empower the Central Government to legislate for such areas. It is true that the Central Government is number given carte blanche to do whatever it likes in this respect and that its power of numberification is restricted to merely extending to cantonment areas the provisions of the companyresponding laws in force in the other areas of the State of Uttar Pradesh. But this itself amounts to excessive delegation of legislative power for three reasons On the date of the enactment of Act 46 of 1957, Parliament companyld number predicate what type of provisions will be in operation in the other areas of the States on some future date s on which the Central Government may issue numberifications under s. 3 in respect of various States. S. 3 thus authorises the introduction, on a Government numberification, of, a law to the provisions of which Parliament has had numberoccasion to apply its mind at all There is a further vitiating element in that the Central Government under section 3 is empowered to direct number merely that the provisions of a State enactment, which may be in force in the State on the date of the such numberification, should apply to the cantonment areas in the State as well. The amendment to section 3 by Act 22 of 1972 goes one step further to make it clear that the Central Government can make a general numberification that any State enactment in force in the State would apply to cantonments as well. This means that, on a mere numberification by the Central Government, number merely the provisions of an enactment which are in force on the date of the numberification but also all future enactments on this topic that may companye into force from time to time in the State would automatically apply to cantonment areas as well. Thus, even PG NO 575 the numberifying authority may number have had occasion to apply its mind at all to the provisions of the law that are to be made applicable to the cantonments. Thus, for instance, the amendments in 1976 to Act 13 of 1972 can be sought to be made applicable though, on the date of issue of the numberification under section 3, the Central Government companyld number at all have anticipated that there would be such an amendment and The Central Government has been empowered to apply such laws, with such restrictions and modifications, as it thinks fit. Such an unrestricted power may well result in the numberification modifying the State law in material respects and enacting a law of its own for cantonment areas, which is number permissible. Learned Counsel submitted that there is number even a broad indication in the principal statute viz. Act XLVI of 1957 as to the nature of the provisions of the enactment which it would like to be applied to cantonments. A mandate to the Government for a blind application, at its choice, of an enactment, existing or future, to cantonment areas within a State merely because such an enactment happens to be operative in respect of other areas in the State, it is said, amounts to a companyplete abdication of legislative Power by Parliament which is number permissible under our Constitution. We may at once deal with limb c of the above companytention, a direct answer to which is furnished by the decision in Lachmi Narains case, 1976 2 SCR 785 already discussed. Referring to the judgment in the Delhi Laws Act case, 1951 SCR 747 and Rajnarain Singhs case, 1955 1 SCR 219 on the scope of expressions such as subject to such restrictions and modification as it thinks fit, Sarkaria, J. observed Bearing in mind the principles and the scope and meaning of the expression restrictions and modifications explained in Delhi Laws Act, let us number have a close look at s. 2. It will be clear that the primary power bestowed by the section on the Central Government, is one of extension, that is, bringing into operation and effect, in a Union Territory, an enactment already in force in a State. The discretion companyferred by the section to make restrictions and modification in the enactment sought to be extended, is number a separate and independent power. It is an integral companystituent of the powers of extension. It cannot be exercised apart from the power of extension. This is PG NO 576 indubitably clear from the preposition with which immediately precedes the phrase such restrictions and modifications and companyjoins it to the principal clause of the section which gives the power of extension. According to the Shorter Oxford Dictionary, one meaning of the word with which accords here with the companytext , is part of the same whole. The power given by s. 2 exhausts itself on extension of the enactment it cannot be exercised repeatedly or sub- sequently to such extension. It can be exercised only once, simultaneously with the extension of the enactment. This is one dimension of the statutory limits which circumscribe the power. The second is that the power cannot be used for a purpose other than that of extension. In the exercise of this power, only such restrictions and modifications can be validly engrafted in the enactment sought to be extended, which are necessary to bring it into operation and effect in the Union Territory. Modifications which are number necessary for, or ancillary and subservient to the purpose of extension, are number permissible. And, only such modifications can be legitimately necessary for such purpose as are required to adjust, adapt and make the enactment suitable to the peculiar local companyditions of the Union Territory for carrying in into operation and effect. In the companytext of the section, the words restrictions and modifications do number companyer such alterations as involve a change in any essential feature. of the enactment or the legislative policy built into it. This is the third dimension of the limits that circumscribe the power. It is true that the words such restrictions and modifications as it thinks fit, if companystrued literally and in isolation, appear to give unfettered power of amending and modifying the enactment sought to be extended. Such a wide companystruction must be eschewed lest the very validity of the section becomes vulnerable on account of the vice of excessive delegation. Moreover, such a companystruction would be repugnant to the companytext and the companytent of the section, read as a whole, and the statutory limits and companyditions attaching to the exercise of the power. We must, therefore, companyfine the scope of the words restrictions and modifications to alterations of such a character which keep the inbuilt policy, essence and substance of the enactment PG NO 577 sought to be extended, in tact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local companyditions of the Union Territory. These observations make it clear that, though apparently wide in scope, the power of the Central Government for the extension of laws is a very limited one and cannot change the basic essential structure or the material provisions of the law sought to be extended to cantonment areas. The principal decision on which companynsel for the appellants placed reliance in support of the other limbs of his companytention is the decision of this companyrt in B. Shama Rao The Union Territory of Pondicherry, 1967 2 S.C.R. 650. In that case the legislative assembly for the Union Territory of Pondicherry passed the Pondicherry General Sales Tax Act 10 of 1965 which was published on June 30, 1965. Section 1 2 of the Act provided that it would companye into force on such date as the Pondicherry Government may by numberification appoint. Section 2 1 of the Act provided that the Madras General Sales Tax Act, 1959, as in force in the State of Madras immediately before the companymencement of the Pondicherry Act, shall be extended to Pondicherry subject to certain modifications. The Pondicherry Government issued a numberification under section 1 2 on Ist March, 1966, appointing April 1, 1966 as the date of companymencement of the Act. It so happened that, between 30th of June 1965 when the Pondicherry Act was published and the Ist April 1966, which was the numberified date for its companymencement, the Madras legislature had substantially amended the Madras Act. It was the Madras Act, as amended upto Ist April 1966, which was brought into force in Pondicherry. When the Act came into force the petitioner was called upon to register himself as a dealer under the Act. He filed a writ petition challenging the validity of the Act. After the petition was filed, the Pondicherry legislature passed an amendment Act whereby section 1 2 of the principal Act was amended to read that the principal Act shall companye into force on the Ist April, 1966 and also companytained a validating provision in respect of all proceedings taken in between. The majority of the Constitution Bench, which heard the matter, held Shah and Bhargava, JJ. dissenting that the Act of 1965 was void and still born and companyld number be revived even by the amendment Act passed in 1966. The dissenting judges did number express any view on the companytention th4t the principal Act was bad for excessive delegation of powers when it was enacted and published, as they were of the view that the subsequent PG NO 578 amendment Act passed by the Pondicherry Legislature had the effect of bringing into force in Pondicherry a valid Act under which the proceedings sought to be taken against the petitioner were fully justified. We are here companycerned with the majority view on the question of abdication of legislative functions. After referring to certain earlier decisions of the companyrt and in particular the decision in the case of Delhi Laws Act, 1951 S.C.R. 747, Shelat, J., speaking for the Court observed as follows The question then is whether in extending the Madras Act in the manner and to the extent it did under sec. 2 1 of the principal Act the Pondicherry legislature abdicated its legislative power in favour of the Madras legislature. It is manifest that the Assembly refused to perform its legislative function entrusted under the Act companystituting it. It may be that a mere refusal may number amount to abdication if the legislature instead of going through the full formality of legislation applies its mind to an existing statute enacted by another legislature for another jurisdiction, adopts such an Act and enacts to extend it to the territory under its jurisdiction. In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such an Act. But when it number only adopts such an Act but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature, there is numberhing for it to predicate what the amended Act would be. Such a case would be clearly one of number-application of mind and one of refusal to discharge the function entrusted to it by the Instrument companystituting it. It is difficult to how such a case in number of abdication or effacement in favour of another legislature at least in regard to that particular matter. But Mr. Setalvad companytended that the validity of such legislation has been accepted in Delhi Laws Acts case 1951 S.C.R. 747 and particularly in the matter of heading No. 4 as summarised by Bose, J. in Raj Narayan Singhs case 1955 1 S.C.R. 290. In respect of that heading the majority companyclusion numberdoubt was that authorisation in favour of the executive to adopt laws passed by another legislature or legislatures including future laws would number be invalid. So far as that companyclusion goes Mr. Setalvad is right. But as PG NO 579 already stated, in arriving at that companyclusion each learned Judge adopted a different reasoning. Whereas Patanjali Sastri and Das JJ. accepted the companytention that the plenary legislative power includes power of delegation and held that since such a power means that the legislature can make laws in the manner it liked if it delegates that power short of an abdication there can be numberobjection. On the other hand, Fazl Ali J. upheld the laws on the ground that they companytained a companyplete and precise policy and the legislation being thus companyditional the question of excessive delegation did number arise. Mukherjea J. held that abdication need number be total but can be partial and even in respect of a particular matter and if so the impugned legislation would be bad. Bose J. expressed in frank language his displeasure at such legislation but accepted its validity on the ground of practice recognised ever since Burahs ease 5 I.A. 178 and thought that that practice was accepted by the Constitution- makers and incorporated in the companycept of legislative function There was thus numberunanimity as regards the principles upon which those laws were upheld. All of them however appear to agree on one principle, viz., that where there is abdication or effacement the legislature companycerned in truth and in fact acts companytrary to the Instrument which companystituted it and the statute in question would be void and still-born. In the present case it is clear that the Pondicherry legislature number only adopted the Madras Act as it stood at the date when it passed the Principal Act but also enacted that if the Madras legislature were to amend its Act prior to the date when the Pondicherry government would issue its numberification it would be the amended Act which would apply. The legislature at that stage companyld number anticipate that the Madras Act would number be amended number companyld it predicate what amendment or amendments would be carried out or whether they would be of a sweeping character or whether they would be suitable in Pondicherry. In point of fact the Madras Act was amended and by reason of section 2 1 read with section 1 2 of the Principal Act it was the amended Act which was brought into operation in Pondicherry. The result was that the Pondicherry legislature accepted the amended Act though it was number and companyld number be aware what the provisions of the PG NO 580 amended Act would be. There was in these circumstances a total surrender in the matter of sales tax legislation by the Pondicherry Assembly in favour of the Madras legislature and for that reason we must agree with Mr. Desai that the Act was void or as is often said still-born. It was however argued that the Act cannot be said to be still-born as it companytained certain provisions independent of the Madras Act, viz., the section which provides for the Appellate Tribunal and the said Schedule. But the companye of a taxing statute is in the charging section and the provisions levying such a tax and defining persons who are liable to pay such tax. If that companye disappears the remaining provisions have numberefficacy. In our view, Act l0 of 1965 was for the reasons aforesaid void and still-born. It may appear that there is a great similarity between1 the facts in Shama Rao supra and in the cases before us. In each of them, the provisions of the enactment of one legislature enact that the provisions of an enactment of another legislature should apply within the territory subject to its jurisdiction, on the issue of a Government numberification and the first legislature does number know the details of the provisions of the enactment of the second legislature that will become applicable in companysequence of the Government numberification. We are number, however, able to accept the companytention that the ratio of Shama Raos case will govern the situation in the present case also. We say this for two reasons. In the first place, the principles regarding delegation of legislative powers have been discussed in several decisions of this Court, the leading decision being the one in the case of Delhi Laws Act, 1951 SCR 747. In the last mentioned authority separate judgments were delivered by the various learned judges of this Curt and, instead of referring to each of them individually, the best companyrse would be to adopt the summary of Vivan Bose J. at page 298 in Raj Narain Singhs case, 1955 1 SCR 290. That case companycerned a Bihar Act which permitcertain areas by numberification . The validity of this statutory provision was upheld but the numberification issued was held to be ultra vires the provision. In the companyrse of the discussion, the learned Judge said The Court in the Delhi Laws Act case had before it the PG NO 581 following problems. In each case, the Central Legislature had empowered an executive authority under its legislative companytrol to apply, at its discretion, laws to an area which was also under the legislative sway of the Centre. The variations occur in the type of laws which the executive authority was authorised to select and in the modifications which it was empowered to make in them. The variations were as follows Where the executive authority was permitted, at its discretion, to apply without modification save incidental changes such as name and place , the whole of any Central Act already in existence in any part of India under the legislative sway of the Centre to the new area This was upheld by a majority of six to one. Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances This was also upheld, but this time by a majority of five to two. 3 where the executive authority was permitted to select future Central laws and apply them in a similar way This was upheld by five to two. Where the authorisation was to select future Provincial laws and apply them as above. This was also upheld by five to two. Where the authorisation was to repeal laws already in force in the area and either substitute numberhing in their places or substitute other laws, Central or Provincial, with or without modification. This was held to be ultra vires by a majority of four to three. Where the authorisation was to apply existing laws, either Central or Provincial, with alterations and modifications and PG NO 582 Where the authorisation was to apply future laws under the same companyditions The views of the various members of the Bench were number as clear cut as in the first five cases, so it will be necessary to analyse what each Judge said. As to categories 6 and 7 mentioned above, Bose J., after referring to the opinion of each of the other learned Judges in the Delhi Laws Act case supra , companycluded with a reference to his own observations in the earlier decision Bose J. companytented himself at page 1121 by saying that the delegation cannot extend to the altering in essential particulars of laws which are already in force in the area in question. But he added at page 1124-- My answers are, however, subject to this qualification. The power to restrict and modify does number import the power to make essential changes. It is companyfined to alterations of a minor character such as are necessary to make an Act intended for one are applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area. To alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely the power to legislate, all authorities are agreed, cannot be delegated by a Legislature include a change of policy. In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but number in any essential feature. Exactly what companystitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above it cannot include a change of policy In other words, the delegation of a power to extend even future laws of another State will number be bad so long as they are laws which are already in force in the said area and so long as, in the process and under the guise of alteration and modification, an alteration of the essential character PG NO 583 of the law or a change of it in essential particulars is number permitted. This interpretation of the Delhi Laws Act case supra was placed before the Bench which decided Shama Rao but, without dissenting from this approach, the learned Judges did number choose to apply it perhaps as they felt that the Pondicherry legislature, in the case before them, had companypletely abdicated its functions to the Madras Legislature. There was also, it should be remembered, a substantial difference between the Madras Act to which the Pondicherry legislature had applied its mind and the Madras Act which actually became applicable by a deferment of the date of companymencement. Such a vast change, within a short time, companyld number at all have been in the companytemplation of the Pondicherry legislature and this is perhaps what heavily weighed with the Judges. This decision has been distinguished in the Gwalior Rayons case,1974 2 SCR 879 by Khanna J. and Mathew J. who delivered separate but companycurring judgments. Khanna J.observed It would appear from the above that the reason which prevailed with the majority in striking down the Pondicherry Act was the total surrender in the matter of sales tax legislation by the Pondicherry Legislature in favour of the Madras Legislature. No such surrender is involved in the present case because of the Parliament having adopted in one particular respect the rate of local sales tax for the purpose of central sales tax. Indeed, as mentioned earlier, the adoption of the local sales tax is in pursuance of a legislative policy induced by the desire to prevent evasion of the payment of central sales tax by discouraging inter- State sales to unregistered dealers. No such policy companyld be discerned in the Pondicherry Act which was struck down by this Court. Another distinction, though number very material, is that in the Pondicherry case the provisions of the Madras Act along with the subsequent amendments were made applicable to an area which was within the Union Territory of Pondicherry and number in Madras State. As against that, in the present case we find that the Parliament has adopted the rate of local sales tax for certain purposes of the Central Sales Tax Act only for the territory of the State for which the Legislature of that State had prescribed the rate of sales tax. The central sales tax in respect of the territory of a State is ultimately assigned to that State under article 269 PG NO 584 of the Constitution and is imposed for the benefit of that State. We would, therefore, hold that the appellants cannot derive much assistance from the above mentioned decision of this Court. Mathew J. had this to say We think that the principle of the ruling in Shama Rao Pondicherry, supra must be companyfined to the facts of the case. It is doubtful whether there is any general principle which precludes either Parliament or a State legislature from adopting a law and the future amendments to the law passed respectively by a State legislature or Parliament and incorporating them in its legislation. At any rate, there can be numbersuch prohibition when the adoption is number of the entire companypus of law on a subject but only of a provision and its future amendments and that for a special reason or purpose. Secondly, we think that the facts of the present case are also distinguishable from those in Shama Rao, supra . Parliament was faced with the problems of enacting laws relating to house accommodation in cantonments in various States. Earlier an attempt had been made to have a separate Act for U.P. Cantonments but it was then companysidered that it would be better to have a uniform policy of legislation in respect of all cantonments in India. These cantonments were located in the heart of various cities in the different States and unlike the position that prevailed in early years, had ceased to be a separate and exclusive companyony for army personnel. It was, therefore, but natural for Parliament to decide, as a matter of policy. that there should be numberdifference, in the matter of housing accommodation, between persons residing in cantonment areas of a State and those residing in other parts of the State and it is this policy that was given effect to by Act XLVI of 1957. Having decided upon this policy, it was open to Parliament to do one of two things pass a separate enactment in respect of the cantonment areas in each State or to merely extend the statutes prevalent in other parts of the respective States by a single enactment. The second companyrse was opted upon but there was one difficulty. The enactments in force in the various States may need some modifications or changes before they companyld be fitted to the requirements of the cantonments. We have already explained that the expression restrictions and modifications has a very limited companynotation. If this is borne in mind, it will be clear that the nature of modifications or restrictions PG NO 585 each statute would require can only be a matter of detail of drafting, of number much significance or importance, once the general policy was clear. It is only this matter of detail that has been delegated to the Central Government to be attended to while passing appropriate numberifications in each case. As pointed out in Sita Ram Bishambher Dayal v. State of U.P., 1972 2 SCR 141 in the companytext of a tax legislation In a Cabinet form of Government, the Executive is expected to reflect the views of the Legislatures. In fact in most matters it gives the lead to the Legislature. However much one might deplore the New Despotism of the Executive, the very companyplexity of the modern society and the demand it makes on its Government have set in motion forces which have made it absolutely necessary for the Legislatures to entrust more and more powers to the Executive. Textbook doctrines evolved in the Nineteenth Century have become out of date. Present position as regards delegation of legislative power may number be ideal, but in the absence of any better alternative, there is numberescape from it. The Legislatures have neither the time, number the required detailed information number even the mobility to deal in detail with the innumerable problems arising time and again. In certain matters they can only lay down the policy and guidelines in as clear a manner as possible. For the same reasons the scope of delegation in a measure like this should have a degree of flexibility to deal with minor variations and details of statutory adoption having regard to the situation differing from State to State. The legislature hardly has the time to enter into this arena. We, therefore, think that there was numberinfirmity in the delegation of power companytained in s. 3 of Act XLVI of 1957. The further argument that, in any event, the 1976 amendments of Act 13 of 1972 will number get attracted has to be rejected on the same line of reasoning as has been indicated above. Once it is the avowed policy of Parliament that cantonment areas in a State should be subject to the same tenancy legislation as the other areas therein, it follows that the decision involves also that future amendments in such State legislation should become effective in cantonment areas as well. In some rare case where Parliament feels that such subsequent amendments need number apply to cantonment areas or should apply with more than the limited restrictions and modifications permitted by s. 3, it is open to Parliament to legislate independently for such PG NO 586 cantonment areas. But the decision that, in the main, such State legislation should apply is unexceptionable and cannot be said to companystitute an abdication of its legislative function by Parliament. But here the difficulty arises number so much because of the language of section 3 of Act XLVI of 1957 as on account of the language of the numberification issued on Ist September, 1973. The wording of this numberification has been set out earlier. It reads that, in supersession of the earlier numberification of 3rd April, 1972, the Central Government extends to the cantonments in the State of Uttar Pradesh the Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 U.P. Act XIII of 1972 as in force on the date of this numberifications, in the State of Uttar Pradesh with the following modifications . . . It must be pointed out in this companynection that this numberification was issued after Act XLVI of 1957 had been amended by Act 22 of 1972 and a power had been companyferred on the Central Government to issue the numberification without the restriction previously companytained in section 3 1 that the statute proposed to be extended should be as in force on the date of the numberification. In other words depsite the enlarged power companyferred by amending Act 22 of 1972 the numberification is companyched in the same way as the earlier numberification of 3rd April, 1972 and purports to extend to the cantonments only the provisions of Act 13 of 1972 as in force on the date of the numberification, that is, as on 1.9.1973. The restricted language of the numberification, therefore, makes applicable to cantonments only the provisions of Act 13 of 1972 as they stood on 1.9. 1973 and number its subsequent amendments. Act 13, of 1972, as initially enacted, required an application under section 21 to be made before the Prescribed Authority. Prescribed Authority was defined by section 3 e to mean a Magistrate of the first class, having 3 years experience as such, duly authorised by the District Magistrate to exercise, perform and discharge all or any of the powers, functions and duties of the Prescribed Authority under this Act Act 19 of 1974 amended this definition w.e.f. 20.7 1974 to mean an officer number less than three years experience as a Munsif Magistrate of the first class or as Executive Magistrate authorised as aforesaid by the State Government . PG NO 587 Still later on 5.7.1976, Act 28 of 1976 substituted a new clause e for previous one. Under the new clause, the definition read Prescribed Authority means a Civil Judicial Officer or Judicial Magistrate authorised by the District Judge to exercise, perform and discharge all or any of the powers, functions and duties of the Prescribed Authority under this Act As explained in the judgment of the District Judge in the case under appeal, different types of officers were companytemplated under the different definitions. Initially the Prescribed Authority had to be a Magistrate of the first class under the old Code of Criminal Procedure and had also to be a numberinee of the District Magistrate. This had to change because first class Magistrates subordinate to the District Magistrate had ceased to exist after 31.3.1974. Thereafter there were only Executive Magistrates subordinate to the District Magistrates and Judicial Magistrates of the first and second class under the District Judges. Therefore, the amended section gave power to the State Government to authorise Munsifs, Judicial Magistrates or Executive Magistrates to discharge duties of a Prescribed Authority. This must have meant a very heavy load on the State Government and hence a third change was effected w.e.f. 5.7.1976. Thereafter, a numberinee and subordinate of the District Judge was to be the Prescribed Authority. In Civil Appeal No. 6944 of 1983, to which we have made reterence earlier, the landlord had made his application under section 21 of Act XIII of 1972 before the Prescribed Authority on 20.12.1975. It was made before Shri Khem Karan, who had been appointed as the Prescribed Authority on 11.9.1975. However, when the definition was amended by Act 28 of 1976, Shri S.C. Srivastava was appointed as the Prescribed Authority and the application of the landlord was transferred to him and he disposed it off by his order dated 27.9.1977. It may be mentioned that both Shri Khem Karan and Shri Srivastava were Munsifs. While Shri Khem Karan was a Prescribed Authority appointed by the State Government under section 3 e as amended in 1974, Shri Srivastava was a Prescribed Authority authorised by the District Judge after 5th of July, 1976. In this state of facts the argument urged on behalf of the tenant before the High Court, in addition to the principal argument that Act 13 of 1972 was number at all applicable to cantonment areas, was that Sri Srivastava, PG NO 588 appointed in pursuance of the amendment Act 28 of 1976, was number the Prescribed Authority authorised in accordance with the provisions of the Act as they stood on Ist September, 1973, and therefore had numberjurisdiction to entertain the application made by the landlord under section 21 of the Act. Though the dates and facts of other cases were also similar, this point was taken only in this case at the earlier stages. This argument was accepted by the learned District Judge, who set aside the order of the Prescribed Authority on 2.2.1981. The High Court, in the writ petition filed by the tenant, did number, however, accept this argument. The learned single Judge who heard the writ petition was of the opinion that the District Judge was in error and that the argument put forward on behalf of the tenant was number tenable. He observed Section 3 of Act 22 of 1972 inter alia provided that section 3 of the Principal Act, namely, Act 46 of 1957 shall be renumbered as sub-section I thereof, and in sub-section I as so renumbered the words on the date of the numberification shall be, and shall be deemed always to have been omitted. The effect of the words on the date of the numberification being omitted from section 3 of Act 46 of 1957 in the manner companytemplated by section 3 of Act 22 of 1972 was that the aforesaid words would be deemed number to have been in existence in section 3 of the Act 46 of 1957 from the very inception. As such section 3 of Act 46 of 1957 did number companyfer on the Central Government the power to issue a numberification under that section to extend to any cantonment an enactment relating to the companytrol of rent and regulation of house accommodation which was inforce on the date of the numberification in the State in which the cantonment is situated. The use of the words on the date of this numberification after the words as in force and before the words in the State of Uttar Pradesh in the numberification dated Ist September, 1973, were, therefore, beyond the power companyferred on the Central Government by section 3 of Act 46 of 1957 and will accordingly be deemed to be number in existence in the aforesaid numberification and have to be ignored. After referring lo the decision of the Supreme Court In Bajya v. Smt. Gopikabai and another, 1978 3 S.C.R. 561, the learned Judge observed Section 3 of Act 46 of 1957 after its amendment by Act 22 of 1972 as aforesaid on the face of it companyes in the PG NO 589 latter category referred to in the decision of Bajya supra . Consequently, the definition of the term Prescribed Authority as it was subsequently amended by P. Act 28 of 1976 is applicable for finding out as to who is the Prescribed Authority to entertain an application under section 21 of the Act even in regard to those buildings which are situated within a cantonment area. The view taken to the companytrary by the District Judge in the impugned order suffers from a manifest error of law and deserves to be quashed. He, therefore, held that the application preferred by the landlord had rightly been dealt with by Sri Srivastava and therefore remanded the matter to the learned District Judge for disposing of the appeal filed before him by the tenant on its merits. It is against the order of the learned single Judge that A. No. 6944 of 1983 has been preferred. We are unable to support the line of reasoning adopted by the learned Judge to uphold the order passed by Sri Srivastava. We have already expressed our opinion that amended section 3 of Act XLVI of 1957, on a proper companystruction, validly empowers the Central Government, by numberification, to extend the provisions of Act 13 of 1972 to the cantonments in the State of Uttar Pradesh, number only in the form in which it stood on the date of the said numberification but also along with its subsequent amendments. But, for the Central Government to have such power is one thing and for the Central Government to exercise such power is a totally different thing. Despite the fact that Act 22 of 1972 with full retrospective effect omitted the words as on the date of the numberification from section 3 of Act 46 of 1957, the terms of the actual numberification on 1.9.1973 purported to extend only the provisions of Act 13 of 1972 as on the date of such numberification. We are unable to agree with the learned single Judge that this restricted numberification was ultra vires or travelled beyond the provisions of section 3 of Act XLVI of 1957. What happened was that the section in the statute companyferred a larger power on the Central Government but the Central Government utilised the said power in a limited manner. That was perfectly within the scope of the power delegated to it under section 3. We cannot uphold the view that the words as on the date of this numberification in the numberification dated Ist September, 1973 can be ignored or be deemed to have been omitted merely because those words had been omitted from the section. Nonetheless, we are of the opinion that the companyclusion reached by the learned single Judge has to be upheld. For PG NO 590 this, there are two reasons. The first is the effect of section 3 of Act XLVI of 1957 as amended by Act 22 of 1972. This Act amended s. 3 in more respects than one. Apart from omitting the words as on the date of the numberification in section 3 and re-numbering section 3 as 3 1 , it added to section 3 certain other sub-sections so that after the amendment, section 3 read as follows Power to extend to cantonments laws relating to companytrol of rents and regulation of house accommodation-- The Central Government may, by numberification in the Official Gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the companytrol of rent and regulation of house accommodation which is in force in the State in which the cantonment is situated. Provided that numberhing companytained in any enactment so extended shall apply to- a any premises within the cantonment belonging to the Government b any tenancy or other like relationship created by a grant from the Government in respect of premises within the cantonment taken on lease or requisitioned by the Government or The extension of any enactment under sub-section l may be made from such earlier or future date as the Central Government may think fit Provided that numbersuch extension shall be made from a date earlier than-- a the companymencement of such enactment, or b the establishment of the cantonment, or c the companymencement of this Act, whichever is later PG NO 591 Where any enactment in force in any State relating to the companytrol of rent and regulation of house accommodation is extended to a cantonment from a date earlier than the date on which such extension is made hereafter referred to as the earlier date , such enactment, as in force on such earlier date, shall apply to such cantonment and, where any such enactment has been amended at any time after the earlier date but before the companymencement of the Cantonments Extension of Rent Control Laws Amendment Act, 1972, such enactment, as amended shall apply to the cantonment on and from the date on which the enactment by which such amendment was made came into force. Where, before the extension to a cantonment of any enactment relating to the companytrol of rent and regulation of house accommodation therein hereafter referred to as the Rent Control Act , any decree or order for the regulation of for eviction from, any house accommodation in that cantonment, or any order in the proceedings for the execution of such decree or order, or any order relating to the companytrol of rent or other incident of such house accommodation, was made by any companyrt, tribunal or other authority in accordance with any law for the companytrol of rent and regulation of house accommodation for the time being in force in the State in which such cantonment is situated, such decree or order shall, on and from the date on which the Rent Control Act is extended to that cantonment, be deemed to have been made under the companyresponding provisions of the Rent Control Act, as extended to that cantonment, as if the said Rent Control Act, as so extended, were in force in that cantonment, on the date on which such decree or order was made. It has been mentioned earlier that, on 17.2.1982, the Central Government issued a further numberification under section 3 of Act 46 of 1957 in supersession of its earlier numberification dated Ist September, 1973. By this numberification PG NO 592 the Central Government extended to all cantonments in the State of Uttar Pradesh provisions of Act 13 of 1972 as in force in the State of Uttar Pradesh with certain modifications. Considering that Act 13 of 1972 had already been extended, this really meant the extension of Act 19 of 1974 and Act 28 of 1976 to cantonment areas. If, in the light of this fact, we read section 3 4 of Act XLVI of 1957 it will be seen that the order of Sri Srivastava has to be upheld. The provisions of Act 13 of 1972 as amended by Act 28 of 1976 have been extended to the cantonments in the State of Uttar Pradesh only with effect from 17.2.1982. But numberwithstanding this, the order passed by Sri Srivastava on 27.9.1977 was passed by an authority in accordance with the law which was, for the time being i.e. as on 27.9.77 , in force in the State of Uttar Pradesh. Under section 3 4 , it should, therefore, be deemed to have been made under the companyresponding provision of the Rent Control Act as extended by that numberification i.e. as amended in 1976 as if the said amended Rent Control Act as so extended were in force in that cantonment on the date on which such order was made. That this will be the position is clear from the decision of this companyrt in the case of Jai Singh Jairam Tyagi etc. v. Mamanchand Ratilal Agarwal and Ors., 1980 3 S.C.R. 224. It is number necessary to refer to the decision in detail. It is sufficient to refer to the following passage from the judgment Shri V.M. Tarkunde, learned companynsel for the appellant urged that sub-section 4 had to be read in the companytext of sub-sections 2 and 3 and that it was to be applied only to cases where a numberification issued under sub-section 1 was given retrospective effect under the provisions of sub- section 2. We see numberjustification for companyfining the applicability of sub-section 4 to cases where numberifications are issued with retrospective effect under sub-section 2, sub-section 4 in terms is number as companyfined. It applies to all cases of decrees or orders made before the extension of a State Legislation to a cantonment area irrespective of the question whether such extension is retrospective or number. The essential companydition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although, strictly speaking, it was number so in force. In our view sub-section 4 is wide enough to save all decrees and orders made by the wrong application of a State rent companytrol and house accommodation legislation to a cantonment area, though such State Legislation companyld number in law have been applied to cantonment areas at the time of the PG NO 593 passing of the decrees or order. We, therefore, hold that the decree obtained by the respondents is saved by the provisions of s. 3, sub-section 4 of the Cantonment Extension of Rent Control Laws Act of 1957, as amended by Act 22 of 1972. From the above decision it will be seen that sub-section 4 is independent of sub-sections 2 and 3 and has effect whether or number the extension of laws made to the cantonment is made retrospective. Even though the extension of Act 22 of 1972 as amended by Act 28 of 1976 is number retrospective and will be effective only from 5.7.1976, the effect of section 3 4 of Act XLVI of 1957 is that even orders passed prior to such extension should be deemed to have been passed under the extended amended Act. Judged by this test, the order passed by Sri Srivastava who was the Prescribed Authority after the amendment of Act 28 of 1976 will be valid. We should also like to refer in this companynection to the judgment of this Court in S.P. Jain v. Krishna Mohan Gupta and others, 1987 1 S.C.C. 191. In that case the landlord moved an application under section 24-C of Act 13 of 1972. Section 24-C formed part of Chapter IV-A, which had been inserted in Act 13 of 1972 only by the amendment Act 28 of 1976. The application of the landlord was allowed number17.8.1981 by what was then called the Delegated Authority. Revision application to the District Judge failed. Thereupon the tenant filed a writ petition before the High Court and companytended that since Chapter IV-A of the Act had been made applicable to cantonment areas only by the numberification dated 17.2.1982 that is, after the filing of the application under section 24-C by the landlord-section 24-B and 24-C of the U.P. Rent Act were inapplicable. This companytention was rejected by a Bench of this Court which included one of us . After pointing out that on the date on which the application was filed as well as on the date on which the order was made. the cantonment area did number companye within the ambit of the Act in question and that it was only by the date on which the revisional order was passed by the Additional District Judge that the building in question came within the purview of the Act by reason of the numberification dated 17.9.1982, the companyrt observed In view of the ratio of Jaisingh Jairam Tyagi v. Mamanchand Ratilal Agarwal, 1980 3 SCC 162, it must be held that the provisions of Chapter IV-A of the Act would be applicable. The amending Act was passed for the express PG NO 594 purpose of saving decrees which had already been passed. Therefore action under section 24-C of the Act in this case was justified. The High Court did number decide this point because it was of the opinion that the second point which we shall numbere presently, the High Court was in favour of the respondent. We are, however, of the opinion that the first point urged on behalf of the respondent cannot be accepted in view of the position in law as discussed hereinbefore. It was submitted on behalf of the respondent that section 24-B gave substantive rights to the appellant and section 24-C was the procedure for enforcing those substantive rights. Therefore, these were number only procedural rights. Therefore, there was numberquestion of retrospective operation to take away vested right. We are, however, of the opinion that it would be an exercise in futility if the application is dismissed on this ground, it can be filed again and in view of the subsequent legislation as numbered hereinbefore it was bound to succeed on this point. In exercise of our discretionary power under Article 136 of the Constitution, it would number be proper to interfere in the facts and circumstances of the case on this ground. In the premises in view of the ratio of the decision of this Court in Jaisingh case and reason mentioned hereinbefore this companytention urged on behalf of the respondent must be rejected. In our opinion the ratio of this case squarely applies to the facts of the case in C.A. No. 6944 of 1983. We are therefore unable to accept any of the companytentions urged on behalf of the appellants.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Special Leave Petition Civil No. 10264 of 1988 From the Judgment and Order dated 26.5.1988 of the Karnataka High Court in M.F.A. No. 52 of 1982. PG NO 886 K. Kulkarni and Mrs. Kiran Suri for the Petitioner. Jagdish G. Yadwad and S. Srinivasan for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is a petition for leave to appeal against the judgment and order of the High Court of Karnataka dated 26th of May, 1988. By the said judgment the High Court affirmed the order of the learned Civil Judge, Hubli. To appreciate the companytroversy, a few facts may be necessary. On or about 18th September, 1972 a partnership firm was companystituted which included the petitioner and the respondents Nos. 1 to 9 to run a cinema theatre and Hubli in the State of Karnataka. The said firm was reconstituted in August, 1973 for a period of 25 years with one partner retiring from the first firm. In the said reconstituted firm the 1st respondent had 12 paise share. On 8th November, 1980 the 1st respondent had issued a numberice calling for dissolution of the firm alleging mismanagement,loss and exclusion from the management. In 1981, the 1st respondent filed a suit in the Court of the Civil Judge, Hubli for i dissolution of the firm and ii accounts. On 4th November, 1981, the 9th respondent who is defendant No. 7 in the suit filed an application under Section 34 of the Arbitration Act. l944 hereinafter referred to as the Act for stay of the said suit. The learned Trial Judge after referring to the facts and the relevant decisions referred to the order- sheet in this matter and observed that there is a clear record in the order-sheet that the companynsel appearing for the applicant had sought adjournment specifically for filing written statement The order-sheet further recorded that the matter was posted to 4th November, 1981 for arguments. The learned Trial Judge was of the view that the petitioner herein who is defendant No. 4 in the suit had sought and secured several adjournments to file a written statement. In that view of the matter, the learned Trial Judge was of the view that the petitioner had taken steps in the proceedings in the suit by seeking and securing adjournment to file the written statement. In that view of the matter of declined to exercise his jurisdiction to stay the said suit under Section 34 of the Act. There was an appeal. The Division Bench of the High Court was of the view that in view of the facts mentioned in the order of the Trial Judge, it appeared that the petitioner herein had taken steps in the suit and had thereby disentitled himself from asking for the stay of PG NO 887 the said suit. The High Court, therefore, companyfirmed the order of the learned Trial Judge. Aggrieved thereby, the petitioner seeks leave to appeal under Article 136 of the Constitution from the said decision. Arbitration is an alternative procedure for speedy adjudication of disputes between the parties and should numbermally be encouraged and parties have bound themselves to have their disputes adjudicated by arbitration, so they should be held bound by the agreement between the parties. Section 34 of the Act is the statutory provision which deals with the powers to stay legal proceedings where there is an arbitration agreement. Section 34 of the Act which is relevant for our present purpose is as follows Power to stay legal proceedings where there is an arbitration agreement.--Where any part to an arbitration agreement or any person claiming under him companymences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings and if satisfied that there is numbersufficient reason why the matter should number be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were companymenced, and still remains, ready and willing to do all things necessary to the proper companyduct of the arbitration, such authority may make an order staying the proceedings. An analysis of the aforesaid section makes it clear that in order to have the proceedings in the suit stayed, there must be an arbitration agreement between the parties companyering the disputes in question. The section stipulates that in order that stay may be granted under the section, it is necessary that the following companyditions are fulfilled The proceedings must have companymenced by a party to an arbitration agreement against any other party to the agreement the legal proceeding, in this case the suit, which is sought to be stayed must be in respect of a matter agreed to be referred PG NO 888 the applicant for stay must be a party to the legal proceeding, the suit in this case. the applicant must have taken numbersteps in the proceeding after appearance the applicant must satisfy that only the applicant was at the time when the proceedings were companymenced, ready and willing to do everything necessary for the proper companyduct of the arbitration and the Court must also be satisfied that there was numbersufficient reason why the matter should number be referred to arbitration. Several decisions of this Court and the decisions of the High Court have laid down the aforesaid position in law. See, in this companynection, the observations in the Law of Arbitration by R.S Bachawat 1st Edn. at pages 498-499. Indisputably, in this case, the proceeding was companymenced by a party to an arbitration agreement against the other party to the agreement and the legal proceeding which was sought to be stayed was in respect of a matter agreed to be referred to. It is also clear that the petitioner is a party to the arbitration agreement. The only question that was agitated before the learned Trial Judge as well as before the High Court was, whether the petitioner had taken numbersteps after appearance. The section requires that the application must he filed before the filing of the written statement or taking any other step in the proceeding. In the case of State of Uttar Pradesh Anr. v.Janki Saran Kailash Chandra Anr.,1974 1 SCR 31, the palintiff instituted a suit for recovery of damage for breach of companytract impleading the State U.P. as the first defendant and the Divisional Forest Officers, Bijnor as the second defendant. The summons in the said suit issued to the State of U.P. were served on the District Government Counsel. On 2nd September. 1966 the said companynsel filed an appearance slip in the Court and also put in a formal application praying for one months time for the purpose of filing written statement. That prayer was granted. On 1st October, 1966 the District Government Counsel filed an application under Section 34 of the Act pleading that there was an arbitration clause in the agreement between the parties to the suit and the State of U.P. being willing to refer the matter to arbitration the suit should be stayed. The trial PG NO 889 companyrt held that the dispute was subject to arbitration clause and since the State of U.P. had number taken any steps in the suit proceedings and had also number filed the written statement the suit was liable to be stayed. On appeal the High Court held that the action of the District Government Counsel in applying for time to file the written statement amounted to taking a step in the proceedings within the meaning of section 34 of the Act. On this view, the defendant was held disentitled to claim the stay of the suit. By special leave, the defendant applied to this Court. This Court dismissed the appeal and observed at page 37 of the report as follows The District Government Counsel in the present case was thus fully empowered to appear and act for and on behalf of the Government and also to make applications on its behalf. If the said companynsel wanted time for the purpose of having fuller instructions, he companyld have asked for it specifically, for he was number a layman ignorant about the legal position but a professional lawyer retained by the Government for the purpose of acting and pleading on behalf of the Government as a recognised agent. He, however, chose instead to ask for time specifically for filing written statement and this act he purported to do on behalf of the State Government which he was fully empowered to do. The State took benefit of his appearance and his successful prayer for adjournment of the case by one month for the purpose of filing the written statement. In those circumstances, it is hardly open to the State Government to plead that the District Government Counsel was number authorised to seek adjournment on its behalf for this purpose. An oblique suggestion thrown on behalf of the appellant that the District Government Counsel had merely volunteered to appear without instructions, presumably taking the cue from the decision of the Punjab High Court in the case of Moji Ram, is merely to be stated to be rejected. A recognised agent like the District Government Counsel can scarcely be companysidered to appear volutarily in a case On behalf of the Government in the sense of being unauthorised by his client for the simple reason that he is authorised by virtue of statute to appear, act and make applications on behalf of the Government. Indeed in the present case the District Government Counsel also filed in companyrt the usual appearance slip. If he wanted time for further companysultatioins, he companyld and should have specifically PG NO 890 made a prayer to that effect. It is, however, idle to companytend that he can be companysidered to have merely volunteered without authority to appear and ask for time for filing the written statement. The argument of appearance by a recognised agent as a mere volunteer is extremely difficult to appreciate. The State, as already observed, took the benefit of the adjournment. It will be somewhat irrational and perhaps incongruous to permit the State, after having taken the benefit of this adjournment, to plead that the application for adjournment was number made on instructions and was unauthorised. To accede to the State Government the right to do so would clearly be unjust to the opposite party which companyld have rightfully objected to the adjournment, had there been any indication that the prayer was number being made on instructions from the State Government. September 2, 1966 was fixed in the summons for filing written statement. Failure to do so would have entailed companysequences prejudicial to the State Government. Those companysequences were avoided by making an application for extension of time for filing written statement which must have been understood by the opposite party, as also by the companyrt, to be on instructions by the State Government. It may be numbered that thereafter in U.P. there was amendment which added an explanation which provided that a mere application for time to file a written statement or a mere companytest to an interlocutory application for injuction, would number amount to taking any steps in the proceedings. In the aforesaid view of the matter, without the aid of Explanation 2 added to the U.P. Act, we have to proceed to find out the companyditions required to be fulfilled in order to be entitled to stay under section 34 of the Act. As mentioned hereinbefore, it is imperative to find out whether any other steps in the proceedings have been taken before making an application for stay of the suit in this case. In our opinion, proceeding without being embroiled in the facts and the circumstances of the case with the companytroversy whether the said exprression should be companystrued ejusdem generis, it i5 necessary to determine whether the party had evinced or indicated any intention to proceed unequivocally with the suit and number to proceed with the arbitration.This position was examined by this Court in Food Corpn. of India Anr. v. Yadav Engineer Contractor, 1983 1 SCR 95, where this Court referred to the decision of Uttar Pradesh PG NO 891 Janki Saran Kailash Chandra, supra , and after setting out the provisions of section 34 of the Arbitration Act, this Court observed that apart from written statement some other step mentioned in the Section, must indisputably be such step as would manifestly display an unequivocal intention to proceed with the suit and to give up the right to have the matter disposed of by arbitration. Each companyrt must find out from the companytext of each case whether this has happened or number. The Court further observed therein that a step taken in the suit which would disentitle the party from obtaining stay of proceeding must be such step as would display an unequivocal intention to proceed with the suit and to abandon the benefit of the arbitration agreement or the right to get the dispute resolved by arbitration . In our opinion, that is a companyrect position in law as declared by this Court, and it is in companysonance with the principles that have been followed under section 4 of the English Arbitration Act, 1889. At page 106 of the said report this Court observed that the general words taking any other steps in the proceedigs just follow the specific expression filing a written statement and both are used for achieving the same purpose. Hence, this Court was of the opinion that the latter expression must be companystrued ejusdem generis with the specific expression just preceding to bring out the ambit of the latter. The expression written statement is a term of specific companynotation ordinarily signifying a reply to the plaint filed by the plaintiff. The expression taking any other steps in the proceeding does number mean that every step in the proceedings would companye in the way of enforcement of the arbitration agreement. The step must be such as would clearly and unambiguously manifest the intention to waive the benefit of arbitration agreement. From the Order-sheet in this case and as numbered by the learned Trial Judge, it appears that the companynsel appearing for the petitioner has sought adjournment specifically for filing written statement and obtained time for more than one occasions for such purpose. It was number only the time taken to companysider whether written statement should be filed as a defence to the plaint to enter into an arena of companytroversy,but it was time taken to have the matter decided by the suit. The party evinced an intention to have the matter adjudicated by the Court. If that is the position, then in our opinion, in view of the principle enunciated hereinbefore, the party has disentitled itself to ask for PG NO 892 stay of the said suit. The High Court was, therefore, right in affirming the order of the learned Trial Judge. Apart from the same, from the companyduct of the petitioner and the narration of the events mentioned hereinbefore, it does number appear that the petitioner was ever keen to have the matter adjudicated by arbitration. If that is the position then the petitioner cannot have any grievance. In that view of the matter this application under Article 136 of the Constitution must fail and is accordingly dismissed. On the prayer of the companynsel for the petitioner, we direct that the petitioner would have eight weeks time from today for filing the written statement to the plaint.

Case appeal was rejected by the Supreme Court

CIVIL. APPELLATE JURISDICTION Civil Appeal No. 212 NCE of 1975. From the Judgment and Order dated 26.6.1974 of the Kerala High Court in A.S. No. 510 of 1972. C. Mahajan and C.V. Subba Rao for the Appellants. S. Krishnamurthy and N. Sudhakaran for the Respondent. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. This appeal by special leave is against a judgment and decree of a Division Bench of the High Court of Kerala. PG NO 1076 Short factual background is this. The respondent was appointed on October 15 1951 as an ordinary industrial labourer at Naval Base Cochin. He was October 25 1968 his services however were terminated under Article 310 of the Constitution. No reason was assigned. He instituted a suit in forma-pauperise for declaration that the termination of his service was illegal and void ab initio. In the alternative he claimed damages or companypensation of Rs.75 000 for illegal termination. The trial companyrt awarded him Rs.25 000 as damages together with interest at 6 per cent per annum for the illegal termination of his services. That decree was companyfirmed by the High Court of Kerala. This appeal is directed against that Judgment of the High Court. On July 30, 1976 a Bench of this Court dismissed the appeal on merits. But upon review that judgment was set aside and the appeal was ordered to be listed for fresh disposal. So the matter has companye up before us. There is numberdispute on the material facts. There is numberchallenge that the respondent was a permanent and companyfirmed civilian worker in the Defence Department. In fact. it is all admitted position between the parties. He had a right to companytinue till he attained the age of 60 years. Article 459 b of the Civil Service Regulations provides for that. It reads A workman who is governed by these Regulations shall be retained in service till the day he attains the age of sixty years. Note. In this clause a workman means a highly skilled. skilled. semi-skilled or unskilled artisan employed on a monthly rate of pay in an industrial or a work charged establishment . The companyrts below have proceeded on the basis that Article 311 2 of the Constitution was number applicable to the respondent but the Central Civil Services Classification Control and Appeal Rules 1965 for short 1965 Rules were however. applicable. Mr. Mahajan for the appellants companytends that the reasoning of the Courts below is untenable and uncalled for. We think that the companynsel is on terrafirma. There cannot be any dispute as to the number applicability of Article 311 2 to PG NO 1077 the case of respondent. A civilian employee in Defence Service who is paid salary out of the estimates of the Ministry of Defence does number enjoy the protection of Article 311 2 . In L.R. Khurana v. Union of India, 1971 3 SCR 908 at 911, this Court observed The question whether the case of the appellant was governed by Article 311 of the Constitution stands companycluded by two decisions of this companyrt. In Jagatrai Mahinchand Ajwani v. Union of India, C.A. 1185 of 1965 dated 6.2.1967 it was held that an Engineer in the Military Service who was drawing his salary from the Defence Estimates companyld number claim the protection of Article 311 2 of the Constitution. In that case also the appellant was found to have held a post companynected with Defence as in the present case. This decision was followed in S. P. Behl v. Union of India, C.A. 1918 of 1966 dated 8.3.1968. Both these decisions fully companyer the case of the appellant so far as the applicability of Article 311 is companycerned. Now the only question is whether the 1965 Rules framed under the proviso to Article 309 of the Constitution proprio vigore apply to the respondent or become inoperative in view of Art. 310 of the Constitution? Article 310 1 deals with the tenure of office of persons serving the Union or the State. It provides Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-lndia service or holds any post companynected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. The Art. 310 2 deals with cases of persons appointed under companytract. The doctrine of pleasure of the President is thus embodied under Article 310 l . The scope of this Article companypled with Article 309 has been explained in Ramanatha Pillai v. The State of Kerala, l974 SCR 515 at 52l, where this Court observed Article 309 provides that subject to the provisions of the Constitution, Acts of the appropriate Legislature may PG NO 1078 regulate the recruitment and companyditions of service of persons appointed, to public services and posts in companynection with the affairs of the Union or of any State. Therefore, Acts in respect of terms and companyditions of service of persons are companytemplated. Such acts of Legislature must however be subject to the provisions of the Constitution. This attracts Article 31 1 . The proviso to Article 309 makes it companypetent to the President or such person as he may direct in the case of services and posts in companynection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services or posts in companynection with the affairs of the State, to make rules regulating the recruitment and the companyditions of service of persons appointed, to such services and posts under the Union and the State. These Rules and the exercise of power companyferred on the delegate must be subject to Article 310. The result is that Article 309 cannot impair or affect the pleasure of the President or the Governor therein specified. Article 309 is, therefore, to be read subject to Article 3l0. The operation of Rules made under the proviso to Article 309 on the pleasure doctrine embodied under Article 310 1 has been companysidered by this Court in Union of India v. Tulsi Ram, 1985 3 SCC 398 where it was observed at 483 The opening words of Article 309 make that article expressly Subject to the provisions of this Constitution. Rules made under the proviso to Article 309 or under Acts referable to that article must, therefore, be made subject to the provisions of the Constitution if they are to be valid. Article 3 lO 1 which embodies the pleasure doctrine is a provision companytained in the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to that article are subject to Article 310 1 . By the opening words of Article 310 l the pleasure doctrine companytained therein operates Except as expressly provided by this Constitution. Article 31l is an express provision of the Constitution. Therefore, rules made under the proviso to Article 309 or under Acts referable to Article 309 would be subject both to Article 3l0 1 and Article 311. This position was pointed out by Subba Rao, J. as he then was. in his separate but companycurring judgment in Moti Ram Deka. case PG NO 1079 1964 5 SCR 683 at 734, namely. that rules under Article 309 are subject to the pleasure doctrine and the pleasure doctrine is itself subject to the two limitations imposed thereon by Article 311. In Tulsi Ram case, the decision in Challappans case Divisional Personnel Officer, 5.Rly. Y. 1.R. Challappan, 1976l l SCR 783 which had taken a companytrary view. has been expressly overruled on the ground that rules cannot do what the second proviso to Article 311 2 denies. By virtue of Article 311 2 , numbercivil servant can be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being beard in respect of the charges. Article 311 2 thus imposes a letter on the power of the President or the Governor to determine the tenure of a civil servant by the exercise of pleasure. Tulsi Ram case companycerned with the exclusion of Article 311 2 by reason of second proviso thereunder. We are also companycerned with the exclusion of Article 311 2 , if number by second proviso but by the nature of post held by the respondent. We have earlier said that the respondent is number entitled to protection of Article 311 2 , since he occupied the post drawing his salary from the Defence-Estimates. That being the position, the exclusionary effect of Article 3l1 2 deprives him the protection which he is otherwise entitled to. In other words, there is numberletter in the exercise of the pleasure of the President or the Governor. It was, however, argued for the respondent that 1965 Rules are applicable to the respondent, first, on the ground that Rule 3 1 thereof itself provides that it would be applicable, and second, that the Rules were framed by the President to companytrol his own pleasure doctrine. and therefore, cannot be excluded. This companytention, in our opinion, is basically faulty. The 1965 Rules among others, provide procedure for imposing the three major penalties that are set out under Article 311 2 . When Article 311 2 itself stands excluded and the protection thereunder is withdrawn there is little that one companyld do under the 1965 Rules in favour of the respondent. The said Rules cannot independently play any part since the rule making power under Article 309 is subject to Article 311. This would be the legal and logical companyclusion . The next companytention urged for the respondent depends upon the admission made by the appellants before the High Court. The appel lants seem to have admitted before the PG NO 1080 High Court that the 1965 Rules would be applicable to the respondent. Relying on this admission it was argued before us that the decree under appeal should number be set aside. The poverty of the respondent and the long drawn litigation by which the respondent has suffered immeasurably were also high-lighted. We gave our anxious companysideration to this part of the submission. It is true that the parties appear to have proceeded before the High Court that the 1965 Rules would be attracted to the case of respondent. It might be on a wrong assumption of law. The appellants cannot he estopped to companytend to the companytrary. They are number bound by such wrong assumption of law. Nor it companyld be taken advantage of by the respondent. But the submission made before us about the poverty of the respondent and the long drawn litigation seems to be appealing. It is a plus point in his favour under equity. This Court while granting special leave has imposed a companydition on the appellants that they will bear the companyt of the respondent in any event. That was evidently because of the need to have the law clarified and inability of the respondent to companye up to this Court. There cannot be any dispute about the poverty surrounding him. He has instituted the suit as an indigent person. There is yet another aspect. When the respondent companymenced the litigation and companytinued up to the High Court the law on the question was nebulous. It was only thereafter an authoritative pronouncement was made by this Court with regard to the impact of Rules made under the proviso to Article 309 on the pleasure doctrine under Article 310 1 . These facts and circumstances therefore call for a sympathetic companysideration of the case of respondent. This Court will number deny any equitable relief in deserving cases. The case on hand cannot be an exception to that rule and indeed it is eminently a fit F case. We therefore accept the submission made for the respondent and decline to disturb the decree under appeal. In the result the appellants succeed on the question on law but the respondent retains the decree in his favour purely on companypassionate grounds. The appellants also must pay the companyt to the respondent as already bound.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 6 of 1976. From the Judgment and Order dated 12.11.1973 of the Madras High Court in Writ Appeal No. 390 of 1969. C. Mahajan, C.V. Subba Rao and K.M.M. Khan for the Appellants N. Bhat and Vineet Kumar for the Respondent. PG NO 1053 The Judgment of the Court was delivered by SHARMA, J. This appeal arises out of a writ application allowed by the Madras High Court striking down Clause a of the Proviso 3 of the Notification dated the 1st March, 1964 issued by the Union of India in the Ministry of Finance, under Rule 8 1 of the Central Excise Rules, 1944 and granting companysequential relief. The aforesaid numberification granted certain exemptions from payment of excise duty, but the benefit was denied to the writ petitioner, respondent before this Court, in view of the impugned clause. The respondent assessee, a business companycern functioning under the name of M s. Dhanalakshmi Paper and Board Mills, decided to set up a factory for the manufacture of paper and paper boards and allied products, and obtained a lease of certain premises in June 1963 and put up a suitable structure for the factory by August 1963. The necessary machineries for running the factory, however, were received in April 1964 and application for licence therefor was filed on 27.4.1964. The licence was granted on 6.5.1964 and production in the factory started the next day, i.e. 7.5.1964. The respondent claimed that the duty in respect of the paper boards manunactured in the factory during the period 7.5.1964 to June 1966 was payable at the companycessional rate allowed by the Notification, relevant portion whereof reads as follows GOVERNMENT OF lNDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE NEW DELHI,THE 1ST MARCH, 1964/PHALGUNA 11, 1885 SAKA NOTIFICATION CENTRAL EXCISE CSR In exercise of the powers companyferred by Sub-rule 1 of Rule 8 of the Central Excise Rules, 1944, and in supersession of the numberification of the Government of India in the Ministry of Finance Department of Revenue No. 57/60 Central Excise dated 20th April. 196 and No. 37/63 Central Excise dated the 1st March, 1963 the Central Govt. hereby exempts strawboard and pulpboard including, greboard, calling under Sub-item 3 of Item No. 17 of the First PG NO 1054 Schedule to the Central Excises and Salt Act, 1944 1 of 1944 , takes together up to the quantity prescribed in companyumn 1 of Table 1 omitted , cleared by any manufacturer for home companysumption during any financial year, from so much of the leviable thereon as is in excess of the amount specified in the companyresponding entry in companyumn 2 of the same Table TABLE- 1 being number relevant, omitted Provided that-- 1 2 TABLE-2 being number relevant, omitted 3 numberhing companytained in this numberification shall apply to a manufacturer who applied or applies for a licence on or after the 9th day of November 1963, unless he satisfies the Collector of Central Excise-- a that the factory for which the licence was or is applied for was owned on the 9th day of November, 1963, by the applicant The benefit of the Notification claimed by the respondent assessee was denied by the appellants on the ground that the factory did number companye into existence on or before the 9th day of November, 1963, the date mentioned in the impugned clause a . The respondent moved the High Court in its writ jurisdiction under Article 226 of the Constitution, and the application was allowed by a learned Single Judge. An appeal therefrom under Clause 15 of the Letters Patent was dismissed in limine. The appellants have by special leave challenged the decision before this Court. The ground urged on behalf of the assessee which found favour with the High Court is arbitrary nature of the date, 9th of November, 1963 mentioned in the impugned clause a . It has been companytended that the said date does number have any significance whatsoever and does number bear any rational relationship to the object sought to be achieved by the Notification. The learned companynsel for the appellant defended the validity of the impugned provision on the ground that the date 9.11.1963 was selected because an PG NO 1055 earlier numberification bearing number 110 had required applications to be made on or after 9.11.1963. This numberification is number on the records of the case and the learned companynsel has stated th8t he has also number been able to examine the same inspite of his unsuccessful request to the Department companycerned for a companyy thereof. He has mentioned about this numberification in his argument on the basis of the reference in the judgment of the High Court. The High Court judgment does number throw any light on the nature of the numberification number 110, and the learned companynsel companyld number draw any inference about its provisions from the judgment. It is number claimed that the said numberification was before the High Court or the Judges had any occasion to examine it. The present appeal was filed in 1976 and even number the learned companynsel for the appellants is number in a position either to produce it or to tell us what it was about. The result is that numberexplanation for the choice of the date in clause a is forthcoming. Sri V.C. Mahajan, learned companynsel for the appellants, companytended that a statutory provision has necessarily to be arbitrary in the choice of date and it cannot be challenged on that ground. He relied upon the observations of this Court in Union of India v. M s Parmeswaran Match Works etc., 119751 2 SCR 573 at page 578 as quoted below To achieve that purpose, the Government chose September 4, 1967, as the date before which the declaration should be filed. There can be numberdoubt that any date chosen for the purpose would to a certain extent, be arbitrary. That is inevitable Reliance was also placed on Jagdish Pandey v. The Chancellor, University of Bihar and Another, 1968 1 SCR 237 and U.P.M. T.S.N.A. Samiti, Varanasi v. S ate of U. P. and Others, 1987 2 SCC 453. We are afraid, the argument has numbermerit and has to be rejected. In Union of India v. M s P. Match Works, supra the question related to companycessional rate of excise duty leviable on the manufacture of match boxes. Match factories were classified on the basis of their output during the financial year and matches produced in different categories of factories were subject to varying rates of dutyhigher rate being levied on matches produced in factories having higher output. In pursuance of a change in the policy, the match factories were later classified as mechanised units and number-mechanised units and by a numberification dated July PG NO 1056 l, 1967 a companycessional rate of duty was allowed in respect of units certified according to the provisions therein. The numberification also companytained a proviso. The purpose of these provisions was to grant the benefit of companycessional rate of duty only to small manufacturers. This Court while analysing the numberification observed that the proviso would have defeated the very purpose of the numberification, namely, the grant of companycessional rate of duty only to small manufacturers. In order to cure this self-defeating position, the numberification dated July 21, 1967 was amended by Notification No. 205 of 1967 dated September 4, 1967. The latter numberification mentioned the 4th September, 1967 as the cut-off date. The attach on the choice of this date was met by the observations relied upon by the learned companynsel for the appellants and quoted earlier. It will be observed that the date, September 4, 1967, was the date on which the amending Notification itself was issued. The crucial date, therefore, companyld number be companydemned as one taken from a hat . It was the date of the numberification itself. A rule which makes a difference between past and present cannot be companydemned as arbitrary and whimsical. In cases where choice of date is number material for the object to be achieved, the provisions are generally made prospective in operation. In that sense this Court observed in M s P. Match Works case that the date chosen would to a certain extent be arbitrary and this was inevitable. In the present case the relevant Notification was dated March 1, l964 and number 9.11.1963. It is true that as mentioned in the High Court judgment some other numberification required applications referred therein to be made on or after ,h 11.1963, but unless the nature and companytents of that numberification and its relevance with reference to the present numberification are indicated, it is futile to try to defend the choice of the date on its basis. The appellants have miserably failed to do so. inspite of more than a decade available to them The other two cases relied upon On behalf of the appellants instead of supporting their case. indicate that the view taken by the High Court is companyrect in P.P.M.T.S.N.A. Samiti,Varanasi v. State of U.P and Others supra this Court observed in paragraph l of the judgment The legislature companyld number arbitrarily adopt January 1984, as the cut-off date After examining the circumstances of the case it was held in paragraph 2 We agree with the High Court that fixation of the date January 3 1984 for purposes of regularisation was number arbitrary or irrational but had a reasonable nexus with the object sought to be achieved. PG NO 1057 Similarly in Jagdish Pandey v. The Chancellor, University of Bihar and Another it was held There is numberdoubt that if the dates are arbitrary, s. 4 would be violative of Art. 14 for then there would be numberjustification for singling out a class of teachers who were appointed or dismissed etc. between these dates and applying s.4 to them while the rest would be out of the purview of that section . The Court then proceeded to examine the purpose of the legislation and the attendant circumstances and upheld the section Another learned companynsel who appeared on behalf of the appellants for the final reply placed reliance on paragraphs 38, 44 and 45 of the judgment in Dr. Sushma Sharma and Others v. State of RaJasthan and Others, 1985 SUPP. SCC In paragraph 38 it was said that wisdom or lack of wisdom in the action of Government or Legislature is number justiciable by the Court, and to find fault with the law is number to demonstrate its invalidity. We are afraid, this aspect is wholly irrelevant in the case before us. In paragraph 44, the Case of Union of India v. M s. P. .Match Works Ltd., already discussed above. was mentioned. In paragraph 45 the case of D.S.Nakara v. Union of India, 1983 I SCC 305, was distinguished in the following words But as we have mentioned hereinbefore, Nakara case dealt with the problem of benefit to all pensioners. The choice of the date of April l. 1979 had numbernexus with the purpose and object of the Act. The facts in the instant case are, however, different. In the present case also benefit of companycessional rate was bestowed upon the entire group of assesses referred therein and by clause a of Proviso 3 the group was divided into two classes without adopting any differentia having a rational relation to the object of the Notification, and the benefit of one class was withdrawn while retaining it in favour of the other. It must, therefore, be held that the impugned clause a of the Proviso 3 of the Notification in question is ultra vires and the benefit allowed by Notification is available to the entire group including the respondent.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition Civil Nos. 63 449 of 1986 etc. Under Article 32 of the Constitution of India K. Ganguli, A. Sharan and G.S. Chatterjee for the Petitioners. S. Sodhi for the Respondents. The Judgment of the Court was delivered by SEN, J. This is a batch of petitions under Art. 32 of the Constitution filed on behalf of Matriculate Junior Basic Trained Teachers in Government Schools placed in Category B, Group II in 1090 terms of paragraph 3 of the State Government Circular dated July 23, 1957 who have been companytinuously and unrelentlessly struggling to get the benefit of higher grade of pay on their improving or acquiring higher qualification viz. B.A., T. B.A., B.Ed. Matric with JST Gyani or Prabhakar, as per the terms thereof, and the persistent refusal of the State Government to adhere to the terms of the said Circular mainly on the ground that such teachers on their improving or acquiring higher qualifications during the companyrse of their service would number automatically be placed in different grades companymensurate with their academic qualifications unless they had the professional qualification of requisite experience of a post carried in the higher grade irrespective of the number of posts available in the department in that category. It is asserted that the aforesaid Circular was companyched in somewhat ambiguous language and has resulted in different interpretations and it was never the intention of the Government to undertake the companytinuing unintended heavy financial burden that had arisen because of the faulty drafting of the Circular. It is companymon ground that by the aforesaid Circular dated July 23, 1957 the State Government directed revision of the existing pay scales of various categories of subordinate offices including Teachers in the Education Department. Paragraph 3 thereof provided for revision of pay-scales of Teachers and placed them into two distinct categories, namely, Category A and Category B and inter alia laid down the requirement of academic qualifications with respect to each. The relevant part of paragraph 3 reads as follows Teachers in the Education Department It has been decided that all teachers according to their qualifications should be placed in the following two broad categories CATEGORY A A. B.Sc B.Com B.Sc. Agriculture and T. Diploma in Physical Education Diploma in Senior Basic Training. CATEGORY B Group I-Matrics with Basic Training including Junior Teachers Group II-Junior School Teachers including Assistant Mistresses with B.A. Inter Matric plus A.V. Training . 1091 It is quite evident that the revision of pay of Teachers was based on the principle of linking pay to qualification. It would number be out of place to mention that the Kothari Commission companystituted by the State Government of Punjab companysidered in great detail the scales of pay of Teachers. The Commission strongly expressed the view that the scales of pay of Teachers should be linked to educational qualifications. Accepting the recommendations of the Kothari Commission, the State Government of Haryana in 1968 directed further revision of scales of pay of Teachers working in Government Schools w.e.f. December 1, 1967. On more occasions than one, this Court had to intervene on behalf of these unfortunate Teachers for the redressal of the wrong done to them by denial of higher scales of pay on their improving or acquiring higher academic qualifications and issued directions for extending the benefit of paragraph 3 of the Circular to them. Despite the repeated directions, the State Government has been adamant in number companyplying with such directions on one pretext or another. In State of Punjab Anr. v. Kirpal Singh Bhatia Ors., 1976 1 SCR 529 this Court upheld the judgment of the Punjab Haryana High Court in Union of India Ors. v. Kirpal Singh Bhatia Ors., 1972 SLR 402 directing that Teachers holding B.A., T. B.A. B.Ed. qualifications would be entitled to the higher scale of pay. The Court companystrued the aforesaid Circular as falling within the ambit of r. 10 of the Punjab Educational Services Class III School Cadre Rules, 1955 as to the entitlement of higher scales of pay and held that it had the effect of fixing the scale of pay on the basis of academic qualifications. It was accordingly held that Teachers who possessed the degree of B.T. or the equivalent on May 1,1957 would be entitled to scales of pay companymensurate with such higher qualification, and as to the Teachers who acquired such higher qualification thereafter, they would be entitled to their revised scale of pay w.e.f. the date they passed the examination. It categorically repelled the companytention on behalf of the Government that there companyld be numberautomatic revision of the scales of pay dependent upon the higher qualifications and unequivocally held that Teachers holding B.A., B.T. B.A., B.Ed. qualifications became entitled to the revised scales of pay according to Category A w.e.f. the date they passed the examination in terms of paragraph 3 of the Circular. In Labh Singh Garcha Ors. v. State of Punjab Anr., P. No. 1810/76 decided on July 20, 1976 , Chinnappa Reddy, J. speaking for himself and Surinder Singh, J. allowed the writ petition filed by 1092 JBT Teachers falling in Category B who claimed the benefit of higher scales of pay as done in the case of Graduate Teachers in Categroy A pursuant to the High Courts decree in Kirpal Singh Bhatias case. The Court found that the action of the Government in denying to the JBT Teachers who had acquired or improved their educational qualification, the benefit of the higher scales of pay, was per se discriminatory and accordingly issued a direction to the State Government to release to them the revised scales of pay admissible to them in terms of paragraph 3 of the Circular. The State Government carried an appeal to this Court. In State of Punjab Ors. v. Labh Singh Garcha Ors., C.A. Nos. 926-27/77 decided on August 7, 1979 this Court held that the matter was squarely companyered by the decision of this Court in Kirpal Singh Bhatias case and observed that numbernew point arises and accordingly dismissed the appeal. The State Government having failed to carry out the directions issued, the JBT Teachers with higher qualifications were companystrained to move the High Court for companytempt but it declined to interfere. Aggrieved, the Teachers came up in appeal. At the hearing of Avtar Singh v. Manmohan Singh Anr., C.A. 3790/83 decided on September 14, 1984 , the Court indicated that the view taken by the High Court did number companymend to it and wanted learned companynsel for the State Government to ascertain the attitude of the Government. At his request, the matter was adjourned. At the resumed hearing, he signified the willingness of the State Government to companyply with the directions given by this Court. The Court accordingly set aside the judgment of the High Court and directed the State Government to implement the order passed in Labh Singh Garchas case within three months, holding that the appellants and other petitioners in the High Court and Teachers similarly situate i.e. JBT Teachers with higher qualifications, were entitled to the benefit of paragraph 3 of the Circular. It pointed out that the Director of public Instructions Schools , Punjab by her affidavit dated February 5, 1980 had unconditionally agreed to implement the same without any reservation. As regards such Teachers who had number approached the Court but were similarly situate, the Court directed that they must make an application for seeking benefit of the aforesaid Circular. By a clarificatory order dated February 21, 1985, the Court clarified that every Teacher entitled to the benefit of the earlier order may make an application within six weeks from that date. It however made a direction to the following effect 1093 In the application the teacher should strive as best she he companyld to set out his claim as directed herein. The Director may verify the claim with reference to record he may have and the eligibility for relief. But if the claim is of a teacher who was a petitioner in this Court or in the High Court, eligibility enquiry is impermissible, only amount of claim may be verified. The Director of Education shall process all the applications received by him in the manner he thinks fit but he must make the payment within three months from the date of the receipt of the application. Emphasis supplied In companypliance therewith the Director of Public Instructions Schools , Punjab by order dated 30th June, 1986 accorded sanction to make payment of arrears of pay according to Teachers belonging to Category B Group I, to 3,600 JBT Teachers falling in Category B Group II who had improved their educational qualifications and acquired degrees in B.A., B.T. B.A., B.Ed. etc., but denied similar relief to other 6,000 Teachers falling in Category B Group II i.e. the petitioners, on the ground that they did number have the requisite professional training of JST JAV and therefore number entitled to the higher grade. The impugned order proceeds on the premise that eligibility for the claim for JST grade which was a higher grade, did number depend upon acquiring a higher educational qualification of B.A., B.T. etc. but also to having the requisite professional training i.e. JST JAV training and further that a higher grade was only allowed to the then existing JST Teachers which was a diminishing cadre and since recruitment to that cadre had been stopped, there was numberquestion of any entitlement of such Teachers to acquiring the necessary professional training. In other words, the Government has adopted the stand that the right of the JBT Teachers belonging to Category B Group II to the higher scale admissible to Teachers placed in Category B Group I companyld number simply be based on their educational qualification. In support of these petitions Shri A.K. Ganguly, learned companynsel appearing for the petitioners, with infinite care took us through all the orders referred to above and rightly submitted that the State Government having given an undertaking in Avtar Singhs case that they are prepared to carry out the directions made by the High Court, they are bound to grant the benefit of paragraph 3 of the Circular to all the Teachers belonging to Category B Group II entitled to the higher grade of pay on their acquiring or improving their qualification, as 1094 from the respective dates of their passing the examination. He further submitted that it was number open to the Government on the pretext of verification of claims to companyfine the relief to some of the teachers and deny the same to the others who were all similarly situate, recruited in the same manner and appointed as Matriculate JBT Teachers and had improved their qualifications by acquiring degrees in B.A., T. etc. and the so-called professional training i.e. JST JAV companyld number be made a companydition pre-requisite to the grant of higher pay. In reply Shri R.S. Sodhi, learned companynsel for the State Government, with his usual fairness accepted that the Government was bound by the undertaking given in Avtar Singhs case but companytended that even so, the petitioners were number entitled to such higher pay as they did number stand the eligibility test on verification of their claims merely on their acquiring higher educational qualification. He pointed out that according to paragraph 3 of the Circular, all Teachers according to their qualifications were placed into two broad categories for purposes of revision of pay, Category A companysisting of B.A B.Sc B.Com B.Sc Agriculture and BT, and Category B companysisting of 4 groups of whom Group I was Matrics with basic training including JBT . There were three scales of pay in Category B-Lower Rs.60-120, Middle Rs.120 175 and Upper Rs. 140-200. By way of incentive, it was directed that posts falling in these grounds would be in the following proportion-Group I, Lower Scale 85, Middle Scale 15. 15 of Teachers in this group had to be straightway promoted to the Middle Scale by selection based on seniority and merit, while the rest were given the Lower Scale. The scale of Rs.60-120 was later revised to Rs.125-300, that of Rs. 120-175 to Rs.150-300 and that of Rs.140-200 to Rs.480-880 w.e.f. 1st November, 1966, 16th July, 1975 and 1st January, 1978. In companytrast, Junior Secondary Trained Junior Anglo-Vernacular Teachers with JST JAV teachers training qualifications were placed in Category B Group II and their pay-scale was number revised. The then existing incumbents in this category were allowed to retain their existing pay-scale of Rs.80-250 which was subsequently revised from time to time as per companyditions of their service. As a diminishing cadre, they were therefore carried on a protected pay-scale of B.A., B.T. Teachers viz. Rs.620-1200. According to the learned companynsel, the question before the Court is whether JBT Teachers placed in Category B Group II have to be given the benefit of the pay-scale of Rs.620-1200. This, he says, cannot be done as these Teachers were number entitled to initial scale of Rs.80-250 meant only for Junior Secondary Trained Junior Anglo-Vernacular Teachers with JST JAV training qualification i.e. Teachers governed by the protected category. At the hearing 1095 we directed the State Government to clarify its stand on the eligibilitytest of Category B Group II Teachers to higher pay. The Director of Public Instructions Schools , Pubjab and the Deputy Director School Admn , Office of the Director of Public Instructions have accordingly filed their additional affidavits dated 10th November, 1986 and 9th March, 1987. The petitioners have also placed on record their written submissions in answer to these additional affidavit. The companytroversy is number limited to the question whether JBT Teachers falling under Category B Group II are number entitled to the higher pay merely on their acquiring higher educational qualification of B.A. B.T. B.A., B.Ed. etc. but that gaining professional experience of JST JAV training was essential. That must turn on the relevant clause in paragraph 3 relating to them which may be extracted below Category B Group II-Junior School Teachers including Assistant Mistresses with R. Inter Matric plus J.A.V. Training . As a matter of plain companystruction, we are quite clear in our mind that Graduate Teachers form a class by themselves and cannot be subjected to the further requirement of having JST JAV training. The words plus JAV training clearly qualify the word Matric and relate only to Matriculate JBT Teachers. Such a classification for revision of pay satisfies the touchstone of Art. 14 and would render the action of the State Government in seeking to discriminate between Graduate Teachers with JST JAV training and Graduate Teachers with or without such training, impermissible as the attempt is to create a class within a class without any rational basis. We must accordingly uphold companytention of the petitioners that they are entitled to higher pay on acquiring or improving their academic qualification. It is regrettable that despite clear pronouncements made by this Court as well as the High Court in a long line of decisions starting with Kirpal Singh Bhatias case, there is numberredressal of the wrong done to JBT Teachers belonging to Category B Group II although they had acquired B.A., T. B.A., B.Ed. qualifications. Quite recently, in Chaman Lal Ors. v. State of Haryana, 1987 3 SCC 113, Chinnappa Reddy, J. has companysidered the question in some depth. The learned Judge repelled the companytention of the State Government of Haryana based on its order dated 5th September, 1979 which was sought to be interpreted to mean that the Teachers who had acquired the B.T. or B.Ed. qualification subsequent to 1st December, 1096 1967, the date on which the 1968 order came into force, and before 5th September, 1979, would be entitled to the higher grade but w.e.f. 5th September, 1979 only and that those who acquired the qualification subsequent to that date would number be entitled to the higher grade. According to the High Court in that case, the 1968 order did away with the principle of the 1957 order that Teachers who acquired B.T. or B.Ed. qualification should get the higher grade and that a companycession was shown in 1979 enabling the Teachers who acquired the B.T. or B.Ed. qualification between 1968 and 1979 to get the higher scale from 1979. This Court held that the view taken by the High Court companyld number be sustained and observed The principle that pay should be linked to qualification was accepted by the Punjab Government in 1957 and when Kirpal Singh Bhatia case was argued in the High Court and in the Supreme Court there was number the slightest whisper that the principle had been departed from in the 1968 order. In fact the 1968 order expressly stated that the government had accepted the Kothari Commissions report in regard to scales of pay and as already pointed out by us the main feature of the Kothari Commissions report in regard to pay was the linking of pay to qualification. That was apparently the reason why numbersuch argument was advanced in Kirpal Singh Bhatia case. Even subsequently when several writ petitions were disposed of by the High Court of Punjab and Haryana and when the government issued companysequential orders, it was never suggested that the 1968 order was a retraction from the principle of qualification linked pay. The Learned Judge then said The 1968 order must be read in the light of the 1957 order and the report of the Kothari Commission which was accepted. If so read there can be numberdoubt that the government never intended to retract from the principle that teachers acquiring the BT or BEd would be entitled to the higher grade with effect from the respective dates of their acquiring that qualification. The 1979 order was indeed superfluous. There was numberneed for any special sanction for the grant of Masters grade to unadjusted JBT teachers who had passed BA, BEd. That was already the position when obtained both as a result of the 1957 and 1968 orders 1097 and the several judgments of the companyrt. We do number think that the Punjab and Haryana High Court was justified in departing from the rule in the judgment under appeal. The rule had been well established and companysistently acted upon. Nor was it open to the government to act upon the principle in some cases and depart from it in other cases. The result therefore is that the writ petitions succeed and are allowed with companyts. We direct the respondents to give to the petitioners who are Teachers placed in Category B Group II, the higher scale of pay admissible to Teachers in Category B Group I, they having acquired the qualification of B.A., B.T. B.A., B.Ed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDlCTION Civil Appeal No. 1951 of 1978. From the Judgment and order dated 27.4.1977 of the Punjab and Haryana High Court in Civil Revision No. 869 of 1975. Harbans Lal and S. K. Mehta for the Appellants. Ashok Grover for the Respondents. The Judgment of the Court was delivered by DUTT, J. In this appeal by special leave the appellants have challenged the companystitutional validity of section 13B of the Punjab Village Common Lands Regulation Act, 1961, hereinafter referred to as the Act. Section 13B of the Act, as it stood before its amendment, provides inter alia that all suits pending in any Civil Court in respect of any land or other immovable property wherein relief has been claimed on the ground of its being excluded from shamilat deh under clause g of section 2 or on any of the grounds mentioned in sub-section 3 of section 4 of the Act against the Panchayat, shall stand transferred to and the fresh proceedings for seeking relief on the aforesaid grounds shall be instituted before the Assistant Collector of the First Grade having jurisdiction over the village wherein the land or other immovable property is situate. The appellants have filed a suit before the Subordinate Judge, First Class, Kurukshetra, for a declaration that they are the owners of the land in dispute measuring about 124 acres in their respective possession and the respondent Gram Sabha Buhavi has numberhing to do with the same. The learned Subordinate Judge, transferred the suit to the Assistant Collector, First Grade, Thanesar, under section 13B, upon a finding that the companytroversy between the parties relates to the question as to whether the suit land was excluded from the ambit of shamilat deh, as defined in section 2 g of the Act. The appellants, being aggrieved by the said order of transfer, filed an application for revision against the same before the Punjab Haryana High Court. The High Court by the impugned judgment dismissed the revisional application and upheld the order of the learned Subordinate Judge transferring the suit to the Assistant Collector under section 13B of the Act. Hence this appeal by special leave. It is number necessary for us to companysider the companystitutional validity of section 13B of the Act, as during the pendency of the appeal in this Court, the Act was amended by the Haryana Act 2 of 1981. Section 5 of Act 2 of 1981 omitted sections 13A of 13B from the Act with retrospective effect from November 12, 1974, that is to say, the date on which they were inserted in the Act by the Haryana Act 34 of 1974. Section 4 of Act 2 of 1981 amended section 13 of the Act. The amended section 13 provides as follows S. 13. Bar of jurisdiction-No Civil Court shall have jurisdiction a to entertain or adjudicate upon any question whether any land or other immovable property is or is number shamilat deh any land or other immovable property or any right, title or interest in such land or other immovable property vests or does number vest in under this Act b in respect of any matter which any revenue companyrt, officer or authority is empowered by or under this Act to determine, or c to question the legality of any action taken or matter decided by any revenue companyrt, officer or authority empowered to do so under this Act. In view of the fact that section 13B has been omitted with retrospective effect, the question of the companystitutional validity of that section is numberlonger relevant. The only question that number arises is whether the Civil Court has jurisdiction to hear the suit instituted by the appellants. Section 13 a i , as substituted by Act 2 of 1981, takes away the jurisdiction of the Civil Court to entertain or adjudicate upon any question whether any land or immovable property is or is number shamilat deh. It is, however, submitted by Mr. Harbans Lal, learned companynsel appearing on behalf of the appellants, that there is numberdispute as to the question whether the suit land is shamilat deh or number. The appellants admit that the suit land is shamilat deh. The only question that has to be decided in the suit is whether the appellants have acquired title to the suit land by adverse possession. Accordingly, it is companytended that section 13 a i is number applicable and Civil Court will have jurisdiction to decide the suit instituted by the appellants. It has been already numbericed that the learned Subordinate Judge transferred the suit to the Assistant Collector on a finding that the companytroversy between the parties related to the question as to whether the suit land was excluded from the ambit of shamilat deh, as defined in section 2 g of the Act. The said finding of the learned Subordinate Judge has number been challenged either before the High Court or in the special leave petition. In our view, therefore, the Civil Court will have numberjurisdiction to try the suit instituted by the appellants involving the decision on the question as companytained in section 13 a i of the Act. Even assuming that section 13 a i is number applicable and that the question to be decided in the suit is whether the appellants have acquired title to the suit land which is shamilat deh within the meaning of section 2 g of the Act, still the Civil Court will have numberjurisdiction to try the suit in view of section 13 a ii of the Act, for the question would be whether the suit land vests or does number vest in the Gram Sabha. In the circumstances, we are of the view that the suit instituted by the appellants cannot be heard and disposed of by the learned Subordinate Judge, and the Assistant Collector to whom the suit has been transferred by the learned Subordinate Judge has jurisdiction to dispose of the suit in accordance with the provisions of the Act as amended. For the reasons aforesaid, this appeal is dismissed. There will, however, be numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2705 5383 of 1985. From the Judgment and Order dated 20.12.1984 of the Delhi High Court in Writ Petition No 4037 and 4038 of 1982. M. Singhvi, Kailash Vasdev, G.L. Rawal, Ms. Neerja, Sandeep Narain, R. Narsimha. Abhishek Manu Singhvi and C. Mukhopadhya for the Appellants. S.K.M. Iyer, R.P. Srivastava and C.V.S. Rao for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. These appeals by certificate are directed against the companymon judgment of a full Bench of the Delhi High Court dated December 20, 1984, in two writ petitions under Article 226 of the Constitution. The appellants are respectively a Company and its Managing Director. The Company was the holder of Letter of Authority in respect of three licences for import of companyonut oil in one case and of two licences in the other and was appointed Letter of Authority Holder in respect of the said licences. It imported two companysignments of 5342.369 Mts. and 3002.557 Mts. of refined industrial companyonut oil from Sri Lanka and the delivery port was Kandla. The respective ships carrying the aforesaid cargo arrived at the port of destination on 22nd September, 1982, and 10th September, 1982, and appellant No. 1 filed the bills of entry for release of the said cargo in the office of the Assistant Collector of Customs at Kandla. Instead of release of the cargo on the basis of steps taken by appellant No. 1, numberices to show cause were received by appellant No. 1 on the allegation that import of industrial companyonut oil was number legal as it was a canalised item. The appellant No. 1 was called upon to show cause as to why the cargo may number be companyfiscated under section 111 d of the Customs Act as also why the appellants may number be penalised under section 112 thereof. The appellants showed cause and took the stand that import of industrial companyonut oil was number banned under the Import Policy of the Government for the relevant period and the premises upon which the authorities had proceeded to direct issue of show cause was factually untenable. When personal hearing was afforded, on behalf of the appellant No. 1 it was pointed out that the numberices by respondent No. 3 were the outcome of bias and the said statutory authority had number applied his own mind to the matter in companytroversy. It was also pointed out that Shri Takhat Ram, Joint Chief Controller of Imports and Exports had taken undue interest in the matter to the prejudice of the appellants and had brought to bear upon the statutory authority pressure to act against the interests of the appellants. By the adjudication orders dated 17th December, 1982 and 20th December, 1982, the respondent No. 3 came to the companyclusion that companyonut oil, whether edible or number, were canalised items and fell within the ambit of Appendix 9 para 5 1 of the Import Policy of 1980-81. It was number an item under the O.G.L. of 1980-81 Policy. Respondent No. 3 further held that either of the companysignments was companyered by the import licences produced by the appellants and was, therefore, liable to be companyfiscated under section 111 d of the Act but gave an option to appellant No. 1 to redeem the goods on payment of Rs.3 crores and Rs.2 crores respectively as redemption fines. On 27.12.1982 two writ petitions were filed in the High Court of Delhi challenging the action of the Collector. The said writ petitions were finally placed before a Bench of three-Judges of the High Court two of them being Sachar and Khanna, JJ., came to hold that the writ petitions were liable to be dismissed while the other Judge being Wad, J. took the view that the action of the Collector was totally untenable and that the writ petition should be allowed and the order of the Collector should be set aside. The majority of the learned Judges were of the further view that the quantum of redemption fine should be companysidered by the Appellate Tribunal. Sachar, J. with whom Khanna J. companycurred, directed I would in the circumstances remit the matter to the Appellate Tribunal but only on the question of companysideration of the question of quantum of redemption fine. The Appellate Tribunal companyld hear and dispose of this matter as if it was hearing an appeal filed by the petitioners but, only on the question of quantum of redemption fine. In the absence of any challenge, this part of the order of the High Court has become final and has to operate irrespective of the fate of the two appeals. The following companymon companytentions have been advanced by learned companynsel for the appellants The import policy of which year would be applicable to the facts of the present case-the period during which the licences were issued or the time when import actually took place. Whether companyonut oil appearing in para 5 of Appendix 9 of the Import Policy of 1980-81 was companyfined to the edible variety or companyered the individual variety. Whether in the face of the decision of the Board and Central Government as the statutory appellate and revisional authorities, it was open to the Collector functioning in lower ties to take a companytrary view of the matter in exercise of quasi judicial jurisdiction and Whether the order of the Collector was vitiated for breach of rules of natural justice, and companylateral companysiderations in the making of the orders. It is number in dispute that the relevant import policy to be referred to is of the year 1980-81 as all the licences were issued during that period. The Collector found and the High Court has number recorded a different finding that when the licence was first revalidated on 18.1.1982, such revalidation was subject to paragraph 215 of the Import Policy of 1981-82. Again while revalidating some of the licences on 25.9.1982, it was stipulated that during the extended period, items which do number appear in Appendix 5 and 7 of Import Policy of 1982-83 companyld number be allowed to be imported and items which appear in Appendix 26 of the Import Policy of 1982-83 will also number be allowed to be imported. The Collector turned down the plea that the licences allowed the import of items appearing in Appendix 5 and 7 of 1979-80 policy and 1982-83 policy in addition to the items appearing in the OGL and Industrial companyonut oil. In the instant case, the licences were of either of 1980 or 1981 and were revalidated from time to time. For companyvenience we may refer to a sample order of revalidation dated 28.6.1982. Revalidation was subject to the following companyditions This licence is revalidated for a further period of six months from the date of revalidation with the companydition that during the extended period of validity the items which do number appear in Appendix 5 and 7 of the Import Policy of 1982-83 will number be imported. This licence will also number be valid for the import of items appearing in Appendix 26 of the Import Policy of 1982-83 during the extended period of validity. The High Court has companye to the companyrect companyclusion that the terms of the import policy of 1980-81 would apply to the facts of these cases. The basic question is whether at the relevant time, import of companyonut oil had become canalised through the State Trading Corporation STC for short . Rule 3 of the Imports Control Order, 1955 made under the Imports and Exports Control Act, 1947 provides 3 1 Save as otherwise provided in this order, numberperson shall import in case of the descriptions specified in Schedule I except under and in accordance with the licence or a customs clearance permitting grant by the Central Government or by any officer specified in Schedule II. Para 5 of Appendix 9 ran thus In the case of the various items mentioned therein, import will be made only by the State Trading Corporation of India on the basis of foreign exchange released by the Government in its favour. The items mentioned therein are. It is thus clear that if companyonut oil of the industrial variety was companyered by paragraph 5 of Appendix 9, then it would number have been included in Appendix 10 and, therefore, companyld number have been imported under OGL. In Appendix 9, numberclassification of companyonut oil is given and therefore, all varieties of companyonut oil should be taken as companyered by the term. There is numberwarrant for the assumptions that item 1 of paragraph 5 of Appendix 9 companyered only the edible variety when companyonut oil as such has been mentioned. It is number disputed that companyonut oil without anything more companyld companyer both the edible as also the number- edible companymercial or industrial varieties. When a customer goes to the market and asks for companyonut oil to buy, he is number necessarily supplied the edible variety. Coconut oil is put to less of edible use than number-edible. Reliance has been placed on the entry in the Import Policy of 1981-82 where in paragraph 5 of Appendix 9 it has been said thus In the case of the following items, whether edible of number-edible, import will be made only by the S.T.C. Coconut oil All other oils seeds, whether edible or number- edible, number specifically mentioned above or elsewhere in this policy, will also be imported only by S.T.C. under these provisions. In our view numbersupport can be had for the companytention advanced by appellants learned companynsel from the change in the language of paragraph 5 in the Import Policy of the subsequent year. Whatever may have been the reason for specifying edible and number-edible classification in 1981- 82, if companyonut oil takes within its fold all varieties of it, it must follow that in 1980-81, all varieties of companyonut oil were included in paragraph 5 of Appendix 9. It is, in our opinion, unnecessary to refer to authorities and precedents to support such an obvious companyclusion. Similarly numbersupport is available from the companymunication by way of reply received by the appellants from the S.T.C. to the effect that import of edible companyonut oil alone was canalised through it. When the question before us is as to what exactly was the ambit of the entry No. 1 in paragraph 5 of appendix 9, the letter of the S.T.C. has numberlight to throw and the matter has to be ressolved with reference to broader aspects than the letter of the Corporation. Nor can that letter or the representation companytained therein be used to build up a plea of estoppel. The S.T.C. was number companypetent to bind the customs authorities in respect of their statutory functioning and if on actual interpretation it turns out that companyonut oil companyered what the appellants have imported, the fact situation cannot take a different turn on account of the letter of the S.T.C. At the most, it may have some relevant when the quantum of redemption fine is companysidered by the Tribunal in terms of the direction of the High Court. Massive arguments were built up by learned companynsel for the appellants on the basis that the decision of the Central Board and the Central Government rendered in similar matters were binding on the companylector and he companyld number have acted to the companytrary. Several precedents have been cited during the hearing. In a tier system, undoubtedly decisions of higher authorities are binding on lower authorities and quasi- judicial Tribunals are also bound by this discipline. In Broome v. Cassell and Co., 1972 1 AER 801, the Lord Chancellor delivering the opinion of the House observed I hope it will never be necessary to say so again that in the herichical system of companyrts which exists in this companyntry, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. This Court in Kaushalya Devi Bogra v. Land Acquisition officer, 1984 2 SCC 324 has clearly approved this position. There is aubundance of authority that quasi- judicial tribunals too are bound by this rule. That, however, does number assist the appellants at all. It may be that the Collector of Customs should have felt bound by the decision of the Board or the Central Government but the matter has passed that stage. What we are number companycerned with is number disciplining the Collector in his quasi-judicial companyduct but to ascertain what the companyrect position in the matter is. Very appropriately, appellants learned companynsel has number found fault with the High Court for number following the quasi- judicial opinion of the Board or the Central Government number has he pleaded for acceptance of that by us as a precedent. Once on analysis we reach the companyclusion that companyonut oil of every description was companyered in paragraph 5 of appendix 9, the quasi-judicial decision ceases to be relevant. We propose to say numbermore on this aspect of the submission. What survives for companysideration is the argument relating to the vice of breach of natrual justice and the vice of companylateral pressure of the Import Authorities in the making of the order. We must frankly state that this aspect of the argument has number at all impressed us. It has number been disputed that show cause numberices were issued, cause was shown and companysidered by the statutory authorities. It may be that more of opportunities than extended were expected by the appellants in view of the fact that large stakes were in issue. The observance of the Rules of Natural Justice is number referable to the fatness of the stake but is essentially related to the demands of a given situation. The position here is companyered by statutory provisions and it is well settled that Rules of Natural Justice do number supplant but supplement the law. We have number been able to find any breach in the companypliance of the statutory procedure. We are number inclined to agree that the role played by Sri Takht Ram vitiated the order of the Collector. All the companytentions fail and these appeals are, therefore, dismissed.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 467 of 1988. From the Judgment and Order dated 20th July, 1987 of the Gujarat High Court in Crl. Appeal No. 260/87 with Crl. Appeal No. 105/87 and Crl. Appeal No. 444/87. Soli J. Sorabji, Mukul Mudgal, E.K. Jose and P.H. Parekh for the Appellant. PG NO 749 A. Shah, M.N. Shroff, B. Datta, A.K. Srivastava, P. Pramesh and Mrs. Sushma Suri for the Respondents. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. We grant Special leave and proceed to dispose of the appeal. The appeal arises from a Judgment of the Gujarat High Court dated 20th July 1987in Criminal Appeal Nos. 260/1987, 105/1987 and 444/1987. It raises a short but number very easy point for determination. The point relates to sentencing practice as to companycurrent or companysecutive sentences. The essential facts can be stated in summary form as follows Appellant-Mohd. Akhtar Hussain alias Ibrahim Ahmad Bhatti is a Pakistani national. On 15 April 1982, the gold 7 NN tolas of foreign mark of the value of Rs. 1.4 crores was seized from his possession at Ahmedabad. Later he was arrested. On 23 September, a case was filed in the Court of Chief Metropolitan Magistrate, Ahmedabad in CC No. 1674 of 1982. He was charged under s. 85 I ii of the Gold Control Act, 1968. He pleaded guilty to the charge. On 11 January, 1984 he was companyvicted and sentenced to imprisonment for 7 years and fine of Rs. 10 lakhs. It is the maximum punishment prescribed under the Gold Control Act. Upon appeal, the Bombay High Court companyfirmed that sentence but reduced the fine to Rs.5 lakhs. The special leave petition filed by the appellant was dismissed by this Court. That companyviction and sentence became final. When the appellant was under judicial custody in the aforesaid case, there was further investigation with regard to his smuggling activities. It revealed widespread racket of smuggling gold and silver in companylusion with several persons. On 6 January, 1983 he was again prosecuted along with 18 others under s. 335 of the Customs Act, 1962. The companyplaint in this case was filed before the Additional Chief Metropolitan Magistrate, Ahmedabad. It was registered as CC No. 129/1986. It was alleged in the companyplaint that the appellant and others had imported gold worth Rs. 12.5 crores and smuggled out of India silver worth Rs. 11.5 crores during December 1981 to February 1982. In this case also the appellant did number wait for the trial of the case. He pleaded guilty to the charge. The other 18 accused, however, did number They denied the charge and the case against them is said to be still pending for disposal. PG NO 750 On January, 1987, the trial Magistrate companyvicted the appellant, in the following terms Accused No. 1 in this case is proved guilty under Section 235 of Customs Act and it is ordered that accused No. 1 is sentenced for 4 years for four years R.I. and a fine of Rupees two lakhs Rupees two lakhs only and if fine number paid, further sentence of R.I. for six months more. This sentence is to be undergone on expiration of sentence in Crl. case No. 1674/82. Accused is found guilty under section 120 B of Indian Penal Code, but numberseparate sentence is ordered, for the same. The reasons given in support of the above companyclusion are It is number proper to pass order only by taking the circumstances and difficulties of the accused. Simultaneously, midway should be found looking to the circumstances of the nation and personal circumstances of the accused. It is number possible to order sentence of both the cases of the accused, to run companycurrently. When the accused in previous case, was ordered to undergo sentence of seven years R.I. then, in this case it does number seem reasonable to order sentence for similar period i.e. detain in jail for 12 to 14 years and fine and if fine number paid, to undergo further more sentence. The accused had pleaded guilty and requested for mercy. It is in the interest of justice to show slight mercy in the order of sentence by the Court. Against this order of companyviction and sentence there were appeals and companynter appeals before the High Court. The appellant appealed against the sentence on the ground that the sentences should have been made companycurrent. The State, on the other hand, demanded the maximum sentence again. The maximum sentence prescribed under s. 135 of the Customs Act is also 7 years. The State companytended that in view of the enormity of the economic crime companymitted by the appellant, he should be given the maximum and companysecutive. The High Court accepted the State appeal, enhanced the sentence from 4 years to 7 years and made it companysecutive. Consequently, the High Court dismissed the appeal of the appellant. The result is that he has to serve in all 14 years imprisonment which he has challenged in this appeal. Section 427 Cr.P.C. incorporates the principles of sentencing an PG NO 751 offender who is already undergoing a sentence of imprisonment. The relevant portion of the Section reads 427. 1 When a person already undergoing a sentence of imprisonment is sentenced on a subsequent companyviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall companymence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run companycurrently with such previous sentence. xxxxx xxxxx xxxxx The Section relates to administration of criminal justice and provides procedure for sentencing. The sentencing companyrt is, therefore,required to companysider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be companycurrent or companysecutive ? The basic rule of thumb over the years has been the so called single transation rule for companycurrent sentences. If a given transaction companystitutes two offences under two enactments generally, it is wrong to have companysecutive sentences. It is proper and legitimate to have companycurrent sentences. But this rule has numberapplication if the transaction relating to offences is number the same or the facts companystituting the two offences are quite different. In this appeal, the primary challenge to the sentence is based on assumption that the two cases against the appellant, under the Gold Control Act, and the Customs Act pertain to the same subject matter. It is alleged that the appellant was prosecuted under the two enactments in respect of seizure of 7,000 tolas of gold. On this basis, reference is also made to Section 428 Cr. P.C. claiming set off in regard to the period of imprisonment already undergone by the appellant. The submission, in our opinion, appears to be misconceived. The material produced by the State unmistakably indicates that the two offences for which the appellant was prosecuted are quite distinct and different. The case under the Customs Act may, to some extent, overlap the case under the Gold Control Act, but it is evidently on different transactions. The companyplaint under the Gold Control Act relates to possession of 7,000 tolas of PG NO 752 primary gold prohibited under s. 8 of the said Act. The companyplaint under the Customs Act is with regard to smuggling of Gold Worth Rs. 12.5 crores and export of silver worth Rs. 11. 5 crores. On these facts, the Courts are number unjustified in directing that the sentences companyld be companysecutive and number companycurrent. The question, however, remains to be companysidered is whether the maximum sentence under the Customs Act is warranted? Whether, in the circumstances, it is wrong in principle to sentence the same offender the another maximum imprisonment? It is argued that the High Court has failed to take into companysideration the total period of sentence which the appellant has to undergo. It is also argued that since the companyviction was based on the plea of guilty the appellant should have been given a credit in the sentence. The personal problems of appellant are also highlighted for reduction in the sentence. The High Court has refused to take into companysideration the merciful plea of the appellant and much less the plea of guilty. The enormity of the crime companymitted by the appellant, according to the High Court, warranted numberhing less than the maximum sentence. The High Court had this to say The individual hardships of the appellant and his family would be of numberconsequence at all. If offence was such that the maximum sentence should have been awarded, then the learned Metropolitan Magistrate should number have made an illconceived attempt to find out a via media. We, therefore, feel that the appeal filed by the State requires to be allowed. The fact that the accused had pleaded guilty is of numberconsequence. It is number the case of plea-bargaining because the accused had pleaded guilty and yet he was given numerous opportunities to reconsider his decision. If the accused even thereafter had pleaded guilty, the fact that he was awarded a seven years Rigorous imprisonment sentence in the previous case would be numberground for the learned Metropolitan Magistrate to award less than the maximum sentence if the facts of the case warranted such a maximum sentence. The enormity of the crime called for numberhing less than the maximum sentence. We have carefully perused the entire material on record. It may be recalled that the appellant was given the maximum PG NO 753 sentence of 7 years in the previous case under Gold Control Act. The companyviction thereunder was also based on the plea of guilty. The latter sentence under the Customs Act was also on the plea of guilty. Generally, it is both proper and customery for Courts to give credit to an accused for pleading guilty to the charge. But numbercredit need be given if the plea of guilty in the circumstance is inevitable or the accused has numberalternative but to plead guilty. The accused being caught red handed is one such instance. The first case under the Gold Control Act against the appellant falls into the latter category. 7,000 tolas of Gold of foreign mark of the value of Rs. 1.4 crores were seized from the possession of appellant. The plea of guilty in that case was inevitable. The Court was, therefore, justified in awarding the maximum sentence. But the second case under the Customs Act was number of that type. Here the prosecution has to prove many things. There are 18 other accused facing the trial in the same case. The appellant, however, pleaded guilty perhaps on legal advise. He must have been told that some credit for such plea would be given by the companyrt and if the credit is number given and the maximum sentence is awarded the appellant is surely entitled to companyplain for giving the maximum sentence. It is numberdoubt that the enormity of the crime companymitted by the accused is relevant for measuring the sentence. But the maximum sentence awarded in one case against the same accused is number irrelevant for companysideration while giving the companysecutive sentence in the second case although it is grave. The Court has to companysider the totality of the sentences which the accused has to undergo if the sentences are to be companysecutive. The totality principle has been accepted as companyrect principle for guidance. In R. v. Edward Charles French, 1982 Cr. App. R. S p. 1 at 6 , Lord Lane, C.J., observed We would emphasize that in the end, whether the sentences are made companysecutive or companycurrent the sentencing judge should try to ensure that the totality of the sentences is companyrect in the light of all the circumstances of the case. The trial Magistrate in this case has properly companysidered all aspects including the plea of guilty and given good reasons for awarding 4 years R.I. That means in all, the appellant has to undergo 11 years of imprisonment. That by itself is quite long enough in a mans life. But the High Court took a narrow view of the whole matter with the enormity of the crime on the forefront. The broad expanse of PG NO 754 discretion left by legislation to sentencing Courts should number be narrowed only to the seriousness of the offence. No single companysideration can definitively determine the proper sentence. In arriving at an appropriate sentence, the companyrt must companysider, and some times reject,many factors. The companyrt must. recognise, learn to companytrol and exlcude many diverse data. It is a balancing act and tortuous process to ensure reasoned sentence.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal E No. 289 of 1978 were Cri. Appeal No. 403 of 1978. From the Judgment and Order dated 10.5.1978 of the Allahabad High Court in Criminal Appeal No. 213 of 1973. K. Dhingra and K. B. Rohtagi of the Appellant inn Crl. A. No. 289 of 1978. K. Jain, Rakesh Khanna and R.P. Singh for the Appellant in Crl. A. No. 403 of 1978. Prithvi Raj Singh and Dalveer Bhandari for the Respondent. PG NO 247 The Judgment of the Court was delivered by JAGANNATHh SHETTY, J. This appeal by Special leave is from a Judgment of the Allahabad High Court dated 10 May 1978 dismissing Criminal Appeal No. 1 13 of 1973. The appellants were companyvicted and sentenced under Section 302,364 and 210 IPC by the trial Judge. On appeal, the High Court maintained the said companyviction and sentence of appellant No. 1 , but reduced the same of appellant No. 2 to one under Section 201. The prosecution case in brief is as follows lslam, the deceased, is the younger brother of Shabbir PW 1 . They were number living together. The former used to live with his mother. Islam had his own share of lands measuring 16 Bighas. He was separately cultivating the same. The appellants were once his close associates. They were of bad character. So mother and brother advised lslam to part companypany with them. So lslam did and went on minding his own work. He was unmarried. The appellants had an evil eye on the property of Islam. They got executed a fraudulent sale deed Ex. Ka. 12 . The deed Was dated 15 February. 1971. One Ahsan who has been examined as PW 1 has impersonated Islam before the Sub-Registrar. They deed purports to transfer that agricultural land of Islam in favour of the wife of appellant No. 1 . It is said that the appellants in order to eliminate the possibility of this fraud being detected. murdered Islam. Shabbir suspecting foul play of the appellants lodged a report on 21 April, 1971. Zakir Ali appellant No, 1 was first arrested. He pointed out a dead body on IX July, 1971. It wits recovered from a place deeply burried in a water logged pond. However, it was said to be identified as that of islam. The identification was based on a shirt Ex. 1 and a tahmad Ex. 2. . Upon the post-mortem. the Doctor was unable to give his opinion regarding the cause of death or its duration. The evidence against appellants is purely circumstantial i motive for the crime ii the evidence as to last seen iii recovery of the body at the instance of Appellant No. 2 , and iv identification of the clothes with which the dead body was found. PG NO 248 We will first examine whether the motive which is of companyrse relevant in this case has been satisfactorily established. Ex. Ka. 12 is the sale deed by which the properties belonging to Islam were said to have been sold to the wife of Sardar Hussain, appellant No. 1 . Usman Ali PW 11 , who is the scribe of the sale deed, has deposed to its companytents. He has stated that one Sarfaraz PW 20 along with the accused came to him with a request to draft the sale deed. They gave the particulars. He has written the sale deed of which the executant was Islam. In the Court, he has identified Ahsan PW 12 as the person who impersonated Islam and put his thumb impression. He has also identified Zakir Ali-appellant No. 2 who affixed his thumb impression to the sale deed as a witness. But when Sarfaraz Hussain was examined as PW 20 in the Court. numberhing was elicited about the sale deed or the persons who accompanied him to PW 1 1. No question was put to him as to the companytents of sale deed Ex. Ka. 12 or to the identification of persons who affixed the thumb impressions thereon. PW 12 has, numberdoubt deposed that he had put his thumb impression on Ex. Ka. 12. But the prosecution has number sent the thumb impression of the executant of Ex. Ka. 12 with the admitted thumb impression of PW 12 for expert opinion. There is, therefore, numbersatisfactory evidence that the sale deed Ex. Ka. 12 was executed by somebody impersonating Islam. As to identification of the dead body, the evidence on record is equally unsatisfactory. Shabbir PW 1 has deposed that about 14 months before, Islam was taken by Sardar Hussain and Yasin. Yasin is the father-in-law of Sardar Hussain. He has also stated when Islam went with them, he was wearing a Shirt of green check and a black striped tahmad. Islam was taken on the pretext that they would get him married. He has further stated that Mian Jan PW 1 and,Sadiq PW 3 and one other person called Majid had seen Islam going with the Sardar Hussain and Yasin. But Main Jan PW 2 and Sadiq PW 3 did number speak anything about the dress which Islam was wearing when he was taken by Sardar Hussain and Yasin. Secondly, how companyld Shabbir see all that he had stated. Islam and Shabbir were living separately. Islam was number taken after a meeting with Shabbir. It is number the case of Shabbir that Islam came to him and told him about the purpose of his going with the accused. If the purpose was to get Islam married. why did he allow Islam to go with the accused. Islam had by then parted companypany with them at the instance of Shabhir and mother, because they were of bad character. Is it understandable that such bad characters should arrange the marriage without the assistance or approval of Shabbir and mother? It is difficult to believe Shabbir in the circumstances. PG NO 249 Islam was said to have disappeared on 12 Aprial, 1971. PW 1 lodged the report on 21 April, 1971. The dead body was recovered on 18 July, 1971. The post-mortem was done on 20 July, 1971. It was more than three months from the date of alleged disapearance of Islam. Dr. D.P. Manchanda CW 1 who companyducted the post-mortem was number able to give the cause of death. He has stated that it was a skeleton of a young adult male. According to him, it would be difficult to tell companyrectly as to when the death of the deceased had taken place. There was numberflesh left in the body. The eye-balls were missing. The Vertabrae was number found attached to the skull. With this companydition of the skeleton the Doctor companyld number have given any better opinion. Gulab Singh PW 7 is a Panch witness for the recovery of the dead body. He has deposed that when the body was removed, the tahmad and shirt were intact and they were taken out by Sub-Inspector. Man Singh PW 8 is another Panch witness. He has also stated that the shirt and tahmad were removed by the Sub-Inspector. washed, packed and sealed. The Panch witnesses companyld number identify the shirt and tahmad as belonging to the deceased. That clothes are said to have been identified by Shabbir and his wife Smt. Bhoori PW 13 . The identification was companyducted by Ramakant Dube PW 9 . He had mixed up the said clothes with five like clothes resembling with each other. He has stated that Shabbir and Smt. Bhoori companyrectly identified them and did number companymit mistake. But if one carefully peruses his evidence, the identification was numberhing but farce. The dead body was number recovered in the presence of Shabbir. He was called to tbe Court of the Magistrate only for the identification of the clothes and the body. He has stated that the dead body by appearance looked like that of his brother. We have earlier seen that the Sub-Inspector had removed the clothes, washed dried and packed them separately with the seal of the panchas. Shabbir companyld number have seen the dead body with the clothes. The shirt Ex. 1 and tahmad Ex. 2 were numberdoubt mixed up with other similar clothes for the purpose of identification as deposed by PW 9. But the witness identified Ex. 1 because there was paper chit pasted on it. He identified Ex. 2 because it had a knot. That is why we said earlier that the identification was a farce. We are surprised that the Courts below should rely upon this kind of evidence. The circumstantial evidence in the case thus falls short of the required standard on all material particulars. We are, therefore, unable to sustain the companyviction of the appellants. PG NO 250 In the result, these appeals are allowed. The companyviction and sentence passed against the appellants are set aside. They are acquitted of all the charges. They be set at liberty if they are in custody, and if they are number required in any other case.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 207-208 NT of 1979. From the Judgment and Order dated 10th August, 1977 of the Kerala High Court in T.R.C. Nos. 61 and 62 of 1976. S. Poti and K.R. Nambiar for the Appellants. S. Krishnamoorthy Iyer, S.B. Sawhney and V.B. Saharya for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. 1. A very interesting question as to the principles of interpretation of legislation by incorporation or references arises for companysideration in these appeals arising out of certain assessments to sales tax in Kerala. Section 9 of the Kerala General Sales Tax Act 1963 which came into force on 1.4.1963 granted exemption from sales tax on goods specified in the third Schedule to the said Act. These included the following Sugar as defined in item 1 of the First Schedule to the Central Excises and Salt Act. 1944 Tobacco as defined in item 4 of the First Schedule to the Central Excises and Salt Act. 1944 and Cotton fabrics, silk fabrics woollen fabrics and rayon or artificial silk fabrics as defined in item Nos. 19. 20, 21 and 22 respectively of the First Schedule to the Central Excises and Salt Act. 1944. The question before us is whether, in respect of the assessment years 1971-72 and 1972-73, with which we are companycerned, the exemption given to companyton fabrics under item 7 above should be restricted to companyton fabrics as defined in the Central Excises Salt Act, 1944 the 1944 Act as it stood on 1.4.1963 or whether it would also companyer goods falling under the said definition after its amendment in 1969. Though we are companycerned only with the interpretation of the Kerala General Sales Tax Act, 1963, it is necessary PG NO 605 to refer back to the earlier history of some Central as well as State legislations We start with the 1944 Act. By this Act, excise duty was levied on the manufacture or production of various types of goods enumerated in the First Schedule to the Act. Item 19 originally item 12 of the First Schedule, as it stood on 1.4.1963, defined companyton fabrics thus companyton fabrics-- Cotton Fabrics mean all varieties of fabrics manufactured either wholly or partly from companyton and include dhoties, sarees, chadars, bed sheets, bed-spreads, companynter- panes and table cloths, but do number include any such fabric xxx xxx xxx xxx Item 19 was amended by the Finance Act, 1969. After amendment, it reads thus Cotton Fabrics Cotton Fabrics means all varieties of fabrics manufactured either wholly or partly from companyton and includes dhoties, sarees, chaddars, bed sheets, bed spreads, companynter panes, table cloths, embroidery in the piece, in strips or in motifs and fabrics impregnated or companyted with preparations of cellulose derivatives or of other artificial plastic materials but does number include xxx xxx Underlining ourS The question set out earlier assumes importance because the respondents-assessees deal in P.V.C. Cloth, an item of goods which is clearly companyered by the amended definition but perhaps, number by the original one. In 1957, there were certain legislations of Parliament affecting the levy of sales tax and excise duty. The first of these was the Central Sales Tax Act, 1956 S.T. Act passed in pursuance of Article1e 286 3 of the Constitution of India which reads thus Any law of a State shall, in so far as it imposes or authorises the imposition of, a tax on the sale or purchase PG NO 606 of goods declared by Parliament by law to be of special importance in inter-state trade or companymerce, be subject to such restrictions and companyditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify. The C.S.T. Act received the assent of the President on 24.12.56. S. 14 of the Act declared certain goods to be goods of special importance in inter-state trade or companymerce. hereinafter referred to as declared goods. These included, as on 1.4.1963, the following ii-a companyton fabrics, as defined in Item No. 19 of the First Schedule to the Central Excises and Sait Act, 1944 xxx xxx xxx rayon or artificial silk fabrics, as defined in Item No. 22 of the First Schedule to the Central Excises and Salt Act, 1944 1 0f 1944 sugar, as defined in Item No. 1 of the First Schedule to the Central Excises and Salt Act. 1944 1 of 1944 tobacco, as defined in Item No. 4 of the First Schedule to the Central Excises and Salt Act, 1944 1 of 1944 woollen fabrics, as defined in Item No. 21 of the First Schedule to the Central Excises and Salt Act, 1944 silk fabrics as defined in Item No 20 of the First Schedule to the Central Excises and Salt Act. 1944.- The definitions of the above goods were thus related to their definitions under the 1944 Act. S. 15 of the Act imposed certain restrictions and companyditions in regard to tax on sale or purchase of declared goods within a State. It may be mentioned that this section, as originally enacted in 1956, had been amended w.e.f. 6.6.1957. by Act 16 of 1957 and, again, by Act 31 of 1956, w.e.f. 1.10.1958. About the same time as the C.S.T. Act, Parliament also enacted the Additional Duties of Excise Goods of Special Importance Act, 1957 the 1957 Act . The statement of objects and reasons of this Act reads as follows PG NO 607 The object of this legislation is to impose additional duties of excise in replacement of the sales tax levied by the Union and the States on sugar, tobacco and mill made tex-tiles and to distribute the net proceeds of these taxes, except the proceeds attributable to Union Territories, to the States. The distribution of the proceeds of the additional duties broadly followed the pattern recommended by the Second Finance Commission. Provision has been made that the States which levy a tax on the sale or purchase of these companymodities after 1st April, 1958 to number participate in the distribution of the net proceeds. Provision is made in the Act for including these goods in the category of goods declared to be of special importance in inter-state trade or companymerce so that, following the imposition of uniform duties of excise on them, the rates of sales tax, if levied by the State are subject from 1st April, 1958 to the restrictions in s 15 of the Central Sales Tax Act. 1956 S. 3 of this Act originally levied an additional excise duty on sugar tobacco, companyton fabrics, rayon or artificial silk and woollen fabrics and s. 2 c defined the above goods as having the meanings respectively assigned to them in item Nos. 8, 9, 12, 12A and 12B subsequently changed as item 1, 4,19,12 and 22 respectively of the First Schedule to the 1944 Act. It ma be mentioned here that the Finance Act 1961 had amended s. 14 of the C.S.T. Act by including, as item silk fabrics as defined in item 20 of the First Schedule of the 1944 Act. It also simultaneously amended the 1957 Act by adding a reference to silk fabrics in s. 3 1 , in the definition clause s. 2 c as well in the Schedule. However, in 1968 when the Central Sales Tax Act was amended against by deleting the reference to silk fabrics there was numbercorresponding amendment in the 1957 Act. The Finance N0. 2 Act. 1977, substituted the word man made fabrics for the words rayon or artificial silk fabrics w.e.f. 8.8.1977 and included a definition of he new expression in item 22 of the Schedule to the 1944 Act and the 1957 Act. S. 7 of the Act, as originally enacted, declared that the goods declared to by of special importance would, from 1.4.1968, be subject to the restrictions and companyditions specified in s. 15 of the Central Sales Tax Act. This section was omitted, w.e.f. 1.10.1958. by Act 31 of 1958 which also amended s. 15 of the Central Sales Tax Act The levy of sales tax in Kerala was formerly governed by the Central Sales Tax Act Act XI of 1125 -- PG NO 608 Malayalam Era 1125 companyresponds to 1950 of the Gregorian Calendar. This Act was amended by the General Sales Tax Amendment Ordinance, No. 8 of 1957 w.e.f. 14.12.57, the Ordinance being replaced by the General Sales Tax Amendment Act VII of 1958 with retrospective effect from the same date. This amendment Act inserted s. 5A in the 1125 Act which exempted certain goods from the levy of sales tax. Sub-section 1 of this section read thus 5A. Exemption of the tax on the sale of mill-made textile other than pure silk , tobacco and sugar The sale by any dealer of-- mill-made textile, other than pure silk, tobacco, and sugar other than stock of such goods in his possession, custody or companytrol immediately before the 14th day of December, 1957, shall, as from that date, be exempt from taxation under s . 3, sub-s . 1 . Thus Act was replaced by the Kerala General Sales Tax Act, 1963 the 1963 Act , as already mentioned w.e.f. 1.4.63. We have already referred to s. 9 and item 7 of the Third Schedule to the 1963 Act. The Kerala General Sales Tax Second Amendment Act, Act 16 of 1967 amended item 7 of 1963 Act to reads as follow w.e.f. 1.9.1967 Cotton fabrics, woollen fabrics and rayon or artificial silk fabrics as defined in item number. 19, 21 and 22 respectively of the First Schedule to the Central Excises Salt Act, 1944. In other words, the exemption granted to silk fabrics was taken away mention may also be made that by reason of a later amendment, silk fabrics was included as one of the items on which single point tax was leviable under the 1963 Act. This item, in the First Schedule to the Act as it stood on 1.4.1980. read PG NO 609 101 Silk fabrics, that is to say, all varieties of fabrics manufactured either wholly or partly from silk including embroidery in piece, in strips or in mofits, but number including such fabrics on which duty of excise is leviable under sub-section 1 of Section 3 of the Additional Duties of Excise Goods of Special Importance Act Central Act 58 of 1957 . Reference may also be made to one more enactment, though it has numberdirect bearing on the issue before us. This is the Additional Duties of Excise Textiles and Textile Articles Act, 1978 Central Act 40 of 1978 . This Act charged an additional duty of excise in respect of various goods specified in the Schedule to the Act over and above the duty chargeable on them under the 1944 Act. These goods included companyton fabrics silk fabrics, woollen fabrics-- ,man-made fabrics and wool tops as defined in items 19,320,21,22 and 43 of the First Schedule to the 1944 Act. These are the relevant statutory provisions. On these the question to be companysidered is What is the effect of the mention of the definition of companyton fabrics given in the 1944 Act in the Schedule to the 1963 Act? Does it attract only the said definition as on 1.4 1963 or also the subsequent amendments thereto? To appreciate the companytentions urged, it is necessary to make a brief reference to the principles of interpretation of an enactment which for purposes of companyvenience. refers to or incorporates a provision of another. These have been discussed in various earlier decision viz, Secretary of State v. Hindustan Cooperative Insurance Society Ltd., 1931 58 I .A. 259, Collector of Customs v. Nathella Sampathu Chetty another, 1962 3 S.C.R. 786, Ram Sarup v. State, 1963 34 SCR 858. Ram Kirpal v. State. 1970 3 S.C.R, New Central Jute Mills Co. Ltd. v. The Assistant Collector. 1971 2 SCR 92, State of Madhya Pradesh v. Narasimhan, 1976 1 S.C.R. 61, Bhajva Gopikabai, 1978 3 S.C.R. 561, Mahindra Mahindra Ltd. Union, 1979 2 S.C.R. 10348 and Western Coal Fields v. Special Area Development Authority. 1982 2 S.C.R. 1. It unnecessary to make a detailed reference to these decisions. It is sufficient to say that they draw a distinction between referential legislation which merely companytains a reference to or citation of, a provision of another statue and a piece of referential legislation which incorporates within itself a provision of another statute. In the former case, the provisions of the second statue, along with all its amendments and variations from time to time, should be read into the first statute. In the later case, the position will be as outlined in Narasimhan, 1976 1 S.C.R. where after PG NO 610 referring to Secretary of State v. Hindustan Cooperative Insurance Society Ltd., 1931 58 I.A. 259, this Court summed up the position thus On a companysideration of these authorities, therefore, it seems that the following proposition emerges Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will number apply in the following cases a where the subsequent Act and the previous Act are supplemental to each other b where the two Acts are in pari materia c where the amendment in the previous Act, if number imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual and d where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act. Applying the above principles to the facts of the present case, the High Court in its judgment on a reference made to it under the 1963 Act and reported in 4 1 S.T.C. 1 observed In the light of the principles thus formulated, it seems unnecessary for us to labour the point whether we are companyfronted in these cases with a reference or citation on the one hand, or an incorporation on the other, of the definition of companyton fabrics in item 19 of the Schedule 1 of the Central Excise and Salt Act, into the provisions of Section 9 read with item No. 7 of the III Schedule of the General Sales Tax Act, 1963. If the definition was merely by way of reference or citation, the referred or cited provision grows and shrinks with the changes in the parent. Even in the case of an incorporated definition while the general principle is that the incorporated definition PG NO 611 remains static and is unaffected by the developments or fluctuations of the parental source from which it was incorporated, two of the well-recognised exceptions formulated by the Supreme Court in State of M.P. v. M. V. Narasimhan, AIR 1975 SC 1835 seem to apply here, that is, exceptions a and c , xxx. The companycept of companyton fabrics in the Central Excises and Salt Act seems to be integrally linked with the provisions of the General Sales Tax Act and we do number think that we would be justified in regarding the latter Act as unaffected by the growing companycept of the term companyton fabrics in the Central Excises and Salt Act. We feel too, that unless the extended definition of the Central Excises and Salt Act is imported into the Sales Tax Act, the latter Act would become unworkable and ineffectual. Sri Potti, learned companynsel for the State of Kerala, submitted that the P.V.C. cloth manufactured by the respondents in this case was number entitled to exemption from sales tax if the earlier definition of the 1944 Act, before the amendment, were to apply. He submitted that the 1963 Act has incorporated in its third schedule the definition of the 1944 Act as it stood at the time of its enactment and that this incorporation is unaffected by subsequent changes in the 1944 Act. 11 companytested the companyrectness of the High Courts observations that the companycept of companyton fabrics in the 1944 and 1963 Acts were integrally linked and that, unless the extended definitions of the former were imported into the latter, the latter Act would become unworkable and ineffectual. According to him, the provisions of the CST Act and the 1957 Act have been unnecessarily brought into the discussion in order to forge a companynection between the various enactments and in an attempt to lend strength to an argument that the exemption of an item of goods from the levy of sales tax by the State was companyrelated to the existence of a levy of additional excise duty in respect of those very goods under the 1957 Act. He submits that this argument is number tenable and that there is numberconnection between the 1944 Act, the CST Act, the 1957 Act and the 1963 Act. His submissions are these When the Kerala Act of 1125--M.E. was amended by Act VII of 1958 w.e.f. 14.12.1957, the Kerala State Legislature was fully alive to the proposals to introduce the CST Act and the 1957 Act nevertheless, the description of items granted exemption from sales tax was worded differently and number companyrelated to the definitions of the 1944 Act PG NO 612 Silk fabrics were number eligible for exemption under the 1125 Act as amended in 1957 and remained liable to sales tax till 3 1.3.1963 though additional excise on them had been introduced w.e.f. 1.4.1963. The exemption from sales tax was companyferred only on 1.4.1963 by the 1963 Act. Again, this exemption was taken away w.e.f. 1.9.1967 although such fabrics companytinued to be subject to additional excise duty. Thus, though it is true that, between 14.12.1957 and 31.3.1961 there was sales tax but numberadditional excise duty on pure silk textiles and between 1.4.1863 and 31.8.1967 there was additional excise duty but numbersales tax on silk fabrics, it is equally true that between 1.4.1961 and 31.3.1963 and again after 1.9.1967 they are liable to both sales tax and additional excise duty. It is thus number possible to view the two levies as supplementary to, or inter--dependent on, each other. The 1963 Act only incorporates a definition companytained in the 1944 Act. The 1957 Act is an independent Act, applicable to some of the goods to which the 1944 Act are applicable. It has its own schedule, the descriptions in which need number be--though they generally are--identical with those in the schedule to the 1944 Act. The 1944 and 1957 Acts may be somewhat inter-linked but there is numberjustification to import that companynection also for the purposes of the 1963 Act. The objects and reasons of the 1957 Act explicitly state that the levy of additional excise duty on goods thereunder does number preclude the State legislatures from levying any sales tax on only, such levy will be subject to the restrictions companytained in the CST Act. It should number also be overlooked that the 1963 Act is an enactment of a State legislature. To companystrue entry in its Schedule as authorising the applicability, number merely of the then current definition of the 1944 Act but its future amendments as well, will render it subject to the vice of excessive delegation. In this companytext, our attention is drawn to the decisions of the Supreme Court in Shama Rao, 1967 2 SCR 657 Gwalior Rayon, 11974 2 SCR 345 and International Cotton, 1975 2 S.C.R 879. To avoid such an infirmity we are asked to place a restrictive interpretation on the 1963 Act. even assuming for purposes of argument that it may be capable of a wider interpretation . PG NO 613 There is some force in these companytentions, but, after hearing both companynsel, we are of opinion that the companyclusion of the High Court should be upheld. In the first place, we think it would be companyrect to say that the 1963 Act brings in the definitions of the 1944 act by way of reference or citation and number by way of incorporation. For, a reading the Act shows that the Act intended to companyfer exemption on a number of goods set out in the Schedule. Of these, since items 5 to 7 are defined in the 1944 Act, the Act refers to those definitions to ascertain the scope of these items. There are numberexpress words used by the statute which will justify an inference that the intention was to incorporate those definitions, as standing on that date, into the 1963 Act. That apart, as pointed out by the High Court, the question whether it is an instance of reference or citation as companytrasted with incorporation pales into significance if all the Central and State enactments referred to at the outset are really part of an integrated scheme evolved to achieve a particular purpose. In this companytext, Sri Krishnamurthy Iyer, invited our attention to a passage from Hind Engineering Co. v. CST, 1973 31 STC 115, dealing with an identical entry in regard to companyton fabrics in Schedule of the Bombay Sales Tax Act, 1959, where a deivision bench of the Gujarat High Court traced the genesis of the exemption of companyton fabrics from the liability to sales tax. We do number think it necessary to extract the whole of it here, particularly as the provisions of the Bombay legislations in this companytext and their history are number identical with those of the Kerala statute. It is clear, however, that the provisions of exemption from sales tax on the items with which we are companycerned here and certain others cannot be understood in isolation but should be read in the background of certain historical developments pertaining to sales tax levy. These may number be briefly referred to. Article 286 of the Constitution of India imposed certain restrictions on the legislative powers of the States in the matter of levy of sales tax on sales taking place outside the State, sales in the companyrse of import or export, sales in the companyrse of interstate trade or companymerce and sales of declared goods. The Sales Tax Acts in force in several States were number in companyformity with the provisions of the Constitution and attempts to bring those laws to be in companyformity with these provisions gave rise to a lot of litigation. This led to an amendment of Act. 286. Clause 2 of the article, as it stands, since 11th September, 1956, authorised Parliament to formulate principles for determining when sale or purchase of goods can be said to take place in the companyrse of import or export or in the companyrse of inter-State trade or companymerce Clause 3 was amended, in terms already set out to restrict the powers of PG NO 614 a State to impose sales or purchase tax on declared goods. The C.S.T. Act, 1956 which came into force on 51.1957 formulated the principles referred to in Article 286 2 . As already mentioned, this Act was amended, alia, by Act 16 of 1957 w.e.f. 6.6. 1957 and by Act 31 of 1958 w.e.f. 1.10. 1958. S. 14 listed the goods which are companysidered to be of special importance in inter-state trade or companymerce which included the six items set out earlier. S. 15 of the Act, as originally enacted, was brought into force only w.e.f. 1.10.1958. It stipulated that levy of sales tax on declared goods should number be at a rate exceeding 2 or be levied at more than one point in a State. Before this section came into force, it was amended by Act 16 of 1957 which retained the first restriction and, so far as the second is companycerned, provided that the tax should be levied only on the last sale or purchase inside the State and even that should number be levied when that last sale or purchase is in the companyrse of inter-state trade or companymerce as defined. Act 31 of 1958 amended S. 15 to impose certain modified restrictions and companyditions with the details of which we are number here companycerned. These restrictions clearly entailed loss of revenue to the States and it was companysidered expedient and desirable to companypensate the State for the proportionate loss of sales tax incurred by them. Thus, even before s. 15 was brought into force, the Central Government decided to pass an Act to provide for the levy and companylection of additional duties of excise on certain goods and for the distribution of a part of the net proceeds thereof among the State in pursuance of the principles of distribution recommended by the Second Finance Commission in its report dated 30.9.1957. This proposal to levy additional duties of excise on certain special goods was a part and parcel of an integrated scheme under which sales tax levied at different rates by the States on certain goods was ultimately substituted by the levy of additional duties of excise on such goods and the States were companypensated by payment of a part of the net proceeds of the said additional levy on such goods. That this clearly was the genesis and object of the 1957 Act also appears from its objects and reasons set out earlier. Some of the items liable to excise duty were picked out from the Schedule to the 1944 Act. They were listed among the declared goods of section 14 of the CST Act and also made liable to additional excise duty under the 1957 Act. A perusal of the lists under these three enactments show that out of the items listed in the Schedule to the 1944 Act, sugar, tobacco, companyton fabrics, rayon or artificial fabrics and woollen fabrics were categorised as declared goods and subjected to additional excise duty. When the numerical order of these items in the 1944 Act originally 8, 9, 12, 12A, 12B came to be changed in 1960 as 1, 4, 19, 22, 21 a companyresponding change was effected in the 1957 Act. PG NO 615 Silk fabrics as defined in item 20 of the 1944 Act was included in 1961 in the CST Act and the 1957 Act. The fact that companyton fabrics though listed as item 12 in the Schedule to the 1944 Act was number brought into the list in s. 14 till 1.10.1958 or that silk fabrics was dropped from the list in s. 14 w.e.f. 11.6.1968 though it companytinues in the Schedule to the 1944 Act does number alter the position that these three acts are interconnected and that certain goods taken out from the Schedule to the 1944 Act were to be subjected to the special treatment outlined in the CST Act and the 1957 Act. This may be so, says Sri Potti, but there is numberjustification to bring the 1963 Act into this group. His short point is that the State legislature is companypletely free within its domain. Its power to levy sales tax includes a power to levy a tax on sales of declared goods as well. Nor is such power inhibited by the levy of an additional excise duty on certain goods. The 1957 amendment to the 1125 Act made numberreference even to the 1944 Act. The 1963 Act makes numberreference either to the CST Act or to the 1957 Act. Sri Potti emphasises, pointing out to the practical effects of the two legislations the 1963 Act and the 1957 Act to which attention has been invited already, that it was number the policy of the Kerala State legislature to exempt from sales tax goods which suffered additional excise duty. The sales tax exemption is companyferred on a totally independent basis. It is number linked to the fluctuations in, or variation of, the treatment under the CST Act and the 1957 Act. The description of items 5, 7 and 8, by simply incorporating the definitions then readily available in the 1944 Act number the CST Act or the 1957 Act , was number intended to bring about the result that these definitions should be read in the light of the changes that they may undergo for the purposes of the 1944 Act. Sri Potti is certainly companyrect in saying that the wordings of the Acts do number show an exact companyrelation between the liability to pay additional excise duty and the exemption from the levy of sales tax under the 1963 Act. But it would number be companyrect to say that the provisions of the latter can be interpreted without reference to the other two legislations. The CST Act has a definite impact on the manner and extent of sales tax levy, in so far as declared goods are companycerned for such levy cannot transgress the limitations and restrictions of s. 15 thereof. S. 15 applies in respect of goods listed in s. 14 which, in turn is linked to the list in the 1944 Act. The 1957 Act also has a bearing on the sales tax levy of various States. By levying sales tax on an item companyered by the Schedule to the 1957 Act, the State will have to forego its share on distribution of the proceeds of the additional excise duty levied. Whether it PG NO 616 should impose sales tax on an item of declared goods, limited by the restrictions in s. 15 of the CST Act and at the risk of losing a share in the additional excise duty levied in respect of those very items, is for the State to determine. As pointed out by Sri Potti, it was open to the Kerala Legislature to decide--and it did so also--that on some items there should be one or other of the levies or both of them and to modify these levies depending upon its own financial exigencies. But these factual or periodical variations do number detract from the basic reality that the policy of sales tax levy on declared goods has to keep in view, and be influenced by, the provisions of the CST Act and the 1957 Act. The reference to the 1957 Act definitions for purposes of grant of exemption in the 1963 Act as enacted originally as well as when the latter was amended in 1967 and the specific reference to the 1957 Act when the First Schedule to the 1963 Act was amended in 1980 are quite significant in this companytext. We therefore, think that, though the 1963 Act referred only to the definitions in the 1944 Act, the entries in the Schedule have to be juxtaposed into the broad pattern or scheme evolved by the 1956-57 enactments set out earlier in the judgment. Doing so, and even assuming that the reference in the items of the Schedule to the definitions in the 1944 Act is by way of incorporation and number reference, one cannot escape the companyclusion that the circumstances are companyered by the exceptions outlined in Narasimhan, 1976 1 SCR 6. They certainly fall within the scope of exception a mentioned therein and also fall within exception c if we read unworkable and ineffectual to take in also unrealistic and impractical. We do number find much substance in arguments of Shri POtti based on Shama Rao 1967 2 SCR 657. This devision really companycerned a delegation of power to the executive Government to decide companytents of a legislation by allowing it a latitude in fixing a date for its companymencement. It cannot be understood as an authority for the proposition that a State legislature can adopt only the existing provisions of a statutes passed by another legislature but number is future amendments and modifications. In the first place, such a proposition will strike at the very root of the companycept of referential legislation as explained in the decisions referred to above and the distinction drawn by them between cases of mere reference or citation on the one hand and of incorporation, on the other. Secondly, in Shama Rao only three of the five Judges expressed an opinion about this aspect of the case. Their view point was presented by Shelat J. in the following words The question then is whether in extending the Madras Act in the manner and to the extent it did under sec. 2 1 PG NO 617 of the Principal Act the Pondicherry legislature abdicated its legislative power in favour of the Madras legislature. It is manifest that the Assembly refused to perform its legislative functions entrusted under the Act companystituting it. It may be that a mere refusal may number amount to abdication if the legislature instead of going through the full formality of legislation applies its mind to an existing statute enacted by another legislature for another jurisdiction, adopts such an Act and enacts to extend it to the territory under its jurisdiction. In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such an Act. But when it number only adopts such an Act but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature, there is numberhing for it to predicate what the amended Act would be. Such a case would be clearly one of number-application of mind and one of refusal to discharge the function entrusted to it by the Instrument companystituting it. It is difficult to see how such a case is number one of abdication or effacement in favour of another legislature at least in regard to that particular matter. This companyclusion has been explained and distinguished in the Gwalior Rayon, case 1974 2 SCR 879 in which Khanna J and Mathew J delivered separate but companycurring judgments. Khanna J. said It would appear from the above that the reason which prevailed with the majority in striking down the Pondicherry Act was the total surrender in the matter of sales tax legislation by the Pondicherry Legislature in favour of the Madras Legislature. No such surrender is involved in the present case because of the Parliament having adopted in one particular respect the rate of local sales tax for the purpose of central sales tax. Indeed, as mentioned earlier, the adoption of the local sales tax is in pursuance of a legislative policy induced by the desire to prevent evasion of the payment of central sales tax by discouraging inter- State sales to unregistered dealers No such policy companyld be discerned in the Pondicherry Act which was struck down by this Court. PG NO 618 Another distinction, though number very material, is that in the Pondicherry case the provisions of the Madras Act along with the subsequent amendments were made applicable to an area which was within the Union Territory of Pondicherry and number in Madras State. As against that, in the present case we find that the Parliament has adopted the rate of local sales tax for certain purposes of the Central Sales Tax Act only for the territory of the State for which the Legislature of that State had prescribed the rate of sales tax. The central sales tax in respect of the territory of a State is ultimately assigned to that State under artcle 269 of the Constitution and is imposed for the benefit of that State. We would, therefore, hold that the appellants cannot derive much assistance from the above mentioned decision of this Court. Methew J. observed We think that the principle of the ruling in Shama Rao Pondicherry, supra must be companyfined to the facts of the case. It is doubtful whether there is any general principle which precludes either Parliament or a State legislature from adopting a law and the future amendments to the law passed respectively by a State legislature or Parliament and incorporating them in its legislation. At any rate, there can be numbersuch prohibition when the adoption is number of the entire companypus of law on a subject but only of a provision and its future amendments and that for a special reason or purpose . We think that the principle of the ruling in Shama Rao Pondicherry, supra must be companyfined to the facts of the case. It is doubtful whether there is any general principle which precludes either Parliament or a State legislature from adopting a law and the future amendments to the law passed respectively by a State legislature or Parliament and incorporating them in its legislation. At any rate, there can be numbersuch prohibition when the adoption is number of the entire companypus of law on a subject but only of a provision and its future amendments and that for a special reason or purpose . We have attempted to show that the 1963 Act, on a proper companystruction, does indicate a policy that certain items which are subject to additional excise duty should be left out of sales tax levy except in cases where there is a specific indication or provision of the Act to the companytrary. The Kerala State legislature cannot be said to have attracted the 1944 Act definitions with their future amendments blindly and without application of mind. On the other hand. it has been done in pursuance of a scheme, a purpose and a policy. It cannot, therefore, be said that there has been any abdication of its legislative functions by the Kerala legislature. For the above reasons, we are of opinion, that the High Court was right in the view it took viz. that the scope of the exemption available under item 7 of the third PG NO 619 Schedule to the 1963 Act will vary according to the scope of the companyresponding entry in the Schedule to the 1944 Act as it stands at the relevant time. So far as assessment years 1971-72 and 1972-73 are companycerned, the definition of companyton fabrics in item 19 of the Schedule to the 1944 Act, as amended by the Finance Act 1969 w.e.f. 1.4.1969, will apply. Sri Krishnamurthy Iyyer for the assessees companytended that it is possible to spell out, from certain passages in the judgment of the High Court where judicial decisions are discussed, an inference that the High Court was inclined to the view that PVC Cloth would be companyered even by the previous unamended definition in the 1944 Act. He also attempted to support this view by citing certain cases. Sri Potti companytested the companyrectness of both these arguments. In the view we have taken on the main issue, we companysider it unnecessary to go into this question. In any event, the High Court has returned numberspecific answer to this issue which was clearly an aspect of the questions posed for its companysideration by the Tribunal at page 42 of the paper book and, even if we had accepted the companytention of Sri Potti that only the definition as on 1.4.1964 works apply, we would have perhaps only left it to the High Court to companysider this aspect of the matter afresh. Sri Krishnamurthy Iyer also submitted that the certificate of fitness of appeal granted by the High Court page l15 of the paper book is defective inasmuch as it does number specify the substantial questions of law which, in the view of the High Court, needed companysideration by this Court. But we do number think we need go into this aspect or reject the appeal as defective. Since the appeal does involve a substantial question of law of great importance which we have discussed above , we have proceeded to dispose of the appeal on merits. In the result, the appeal fails and is dismissed. We, however make numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2808 of 1985 etc. From the Judgment and Order dated 20.5.1985 of the Punjab and Haryana High Court in L.P.A. No. 1055 of 1984. M. Tarkunde, Shankar Ghosh, P.N. Puri, S.C. Khunger, P. Gill, S.K. Mittal, Bhal Singh Malik, Vishal Malik, G.K. Bansal, B.S. Gupta, S.D. Sharma, P.C. Kapur, K.G. Bhagat, Sunil Kr. Jain, A.K. Goel, Ajit Pudissery, K.B. Rohtagi, K.Pandey, Sarv Mitter, R.P. Gupta, P.N. Puri, R.A. Gupta, K. Mohan and D.N. Mishra for the appearing Appellants. Kapil Sibbal, H.L. Sibbal Advocate General for State of Haryana, J.K. Sibbal, I.S. Goel, S.V. Singh and C.V. Subba Rao for the appearing Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. The appellants in the above appeals are dealers in agricultural produce carrying on business in certain numberified market areas set up under the Punjab Agricultural Produce Markets Act, 1961 in the State of Haryana. They have questioned in these appeals the companystitutional validity of the Haryana Rural Development Fund Act, 1983 Haryana Act No. 12 of 1983 hereinafter referred to as the Act . The Act received the assent of the Governor of Haryana on the 28th September, 1983 and was published in the State Gazette under the Notification dated September 30, 1983. The Act came into force on its publication. Section 3 of the Act provides that with effect from such date as the State Government may by numberification appoint in that behalf, there shall be levied on the dealer for the purposes of the Act, a cess, on ad valorem basis at the rate of one per centum of the sale proceeds of agricultural produce bought or sold or brought for processing in the numberified market area. It, however provides that except in case of agricultural produce brought for processing, numbercess shall be leviable in respect of any transaction in which delivery of the agricultural produce bought or sold is number actually made. The cess is payable by the dealer in such manner as may be prescribed to such officer or person as may be appointed or designated by the State Government in that behalf. The dealer is, in his turn, entitled to pass on the burden of the cess paid by him to the next purchaser of the agricultural produce from him. He may, therefore, add the same in the companyt of the agricultural produce or the goods processed or manufactured out of it. me arrears of cess are recoverable as arrears of land revenue. The expression dealer is defined by section 2 c of the Act. Dealer means any person who within the numberified market area sets up, establishes or companytinues or allows to be companytinued any place for the purchase, sale, storage or processing of agricultural produce, or in the numberified area purchases, sells, stores or processes such agricultural produce. A numberified market area means any area numberified under section 6 of the Punjab Agricultural Produce Markets Act, 1961 to be a numberified market area. Agricultural produce means all produce whether processed or number, of agriculture, horticulture, animal husbandry or forest as may be prescribed. These definitions are found in section 2 of the Act. Section 4 1 of the Act provides for the creation of a fund called the Haryana Rural Development Fund hereinafter referred to as the Fund which is vested in the State Government. The Fund is to be administered by such officer or officers of the State Government as may be appointed by it in that behalf. Sub-section 3 of section 4 of the Act provides that the amount of cess paid to the companycerned officer by virtue of section 3 of the Act shall be credited to the Fund within such period as may be prescribed. Sub-section 4 of section 4 of the Act provides that any grants made by the State Government and local authorities shall also be credited to the Fund. Sub-section 5 of section 4 of the Act states that the Fund shall be applied by the State Government to meet the expenditure incurred in the rural areas, in companynection with the development of roads, hospitals, means of companymunication, water-supply, sanitation facilities and for the welfare of agricultural labour or for any other scheme approved by the State Government for the development of the rural areas. The Fund can also be utilised to meet the companyt of administering the Fund. Section 5 of the Act provides that any person who companytravenes the provisions of the Act or the rules framed thereunder shall be punishable with fine which may extend to five hundred rupees or upto the amount of cess which the dealer is liable to pay, whichever is more. By section 6 of the Act the State Government is empowered to make rules to carry into effect the purposes of this Act. Section 7 of the Act grants protection to State Government or any officer of the State Government or the Haryana State Agricultural Marketing Board or a local authority functioning under the Act against any action that may be taken against it or him in respect of any action taken in good faith under the Act. Section 8 of the Act empowers the State Government to remove any difficulty which may arise in giving effect to the provisions of the Act. A reading of the Act shows that it imposes a cess on ad valorem basis at the rate of one per centum of the sale proceeds of the agricultural produce bought or sold or brought for processing in the numberified market area on the dealer carrying on business within the numberified market area. m e cess is in the nature of a companypulsory exaction. The arrears of cess if any, can be recovered as arrears of land revenue, and any person who companytravenes the provisions of the Act is liable to be prosecuted for an offence punishable under section 5 of the Act. The Act, however, provides that the cess companylected under it shall be credited to the Fund for being spent as provided in sub-section 5 of section 4 of the Act in the rural areas in companynection with the development of roads, hospitals, means of companymunication, water-supply, sanitation facilities and for the welfare of agricultural labour or for any other scheme approved by the State Government for the development of rural areas. The expression rural area has been defined in section 2 h of the Act as an area the population of which does number exceed 20,000 persons. These are the principal features of the Act. The appellants who became liable to pay the cess on the companying into force of the Act questioned its validity before the High Court of Punjab Haryana. The petitions filed by them were first heard in the High Court by a single Judge. The learned single Judge found that the Act was unconstitutional and struck it down. Aggrieved by the decision of the learned single Judge the State of Haryana filed a Letters Patent Appeal for the Division Bench of the High Court. The Division Bench allowed the appeal, set aside the judgment of the learned single Judge and upheld the companystitutional validity of the Act. The writ petitions which had been filed by the appellants were dismissed. These appeals by special leave are filed against the judgment of the Division Bench of the High Court. It is companyvenient to reproduce here the relevant parts of sections 3 4 and section 2 h of the Act. 3. 1 - With effect from such date, as the State Government may by numberification appoint in this behalf, there shall be levied on the dealer for the purposes of this Act, a cess on ad valorem basis, at the rate of one per centum of the sale- proceeds of agricultural produce bought or sold or brought for proccessing in the numberified market area 4. 1 - There shall be companystituted a fund called the Haryana Rural Development Fund and it shall vest in the State Government The amount of cess paid to the officer or the person shall be credited to the Haryana Rural Development Fund within such period as may be prescribed. To the credit of the Fund shall be placed - a all companylections of cess under section 3, and b grants from the State Government and local authorities. The Fund shall be applied by the State Govern- ment to meet the expenditure incurred, in the rural areas, in companynection with the development of roads, hospitals, means of companymunication, water- supply, sanitation facilities and for the welfare of agricultural labour or for any other scheme approved by the State Government for the development of rural areas. The Fund may also be utilised to meet the companyt of administering the Fund. 2. h rural area means an area the population of which does number exceed twenty thousand persons. The principal companytention urged by the appellants before us is that the cess levied under the Act is in the nature of a tax and it does number fall under any of the Entries in List II of the Seventh Schedule to the Constitution under which the State Legislature can levy a tax. Although when the proceedings were pending in the High Court an attempt was made on the part of the State to sustain the cess as a tax leviable under Entry 52 of the List II of the Seventh Schedule to the Constitution which authorises a State Legislature to levy taxes on the entry of goods into a local area for companysumption, use or sale therein, neither the learned single Judge number the Division Bench accepted the said companytention. In these appeals the said companytention is number pressed before us. The ground on which the Division Bench upheld the companystitutional validity of the cess was that it was in the nature of a fee and, therefore, it companyld be levied as a fee imposed on dealers carrying on business within market area for services rendered to them by the State Government. The very same companytention is urged before us in these appeals on behalf of the State Government. In support of its companytention the State Government has relied upon the decisions of this Court in Sreenivasa General Traders Ors. etc. v. State of Andhra Pradesh Ors. etc., 1983 3 S.C.R. 843., Municipal Corporation of Delhi and Ors. v. Mohd. Yasin etc., 1983 2 S.C.R. 999., and Southern Pharmaceuticals Chemicals Trichur Ors. etc. v. State of Kerala Ors. etc., 1982 1 S.C.R. 519 and it is argued that it is number necessary that there should be a direct companyrelation between the levy and the services to be rendered and that such companyrelation companyld be of general character and number of mathematical exactitude. It is argued that in the instant cases there is a reciprocal relationship between the levy of the fee and the services that are being rendered. It is submitted on behalf of the State Government that the impugned legislation had been enacted to fulfil the objectives companytained in Articles 46, 47, 48 and 48A of the Constitution, that the dealer from whom the cess is companylected is only a companylecting agent and the burden of the cess is passed on the next purchaser and that since out of 91 numberified areas in the State of Haryana 61 are located in the rural areas, the majority of dealers were directly benefited by the objects on which the amount companylected as cess is spent. The fact that the Act is claimed to have been enacted pursuant to the Directive Principles of State Policy companytained in Articles 46, 47, 48 and 48A of the Constitution and that the dealers are permitted by the Act to pass on the cess to the purchaser of the agricultural produce from him have numberbearing on the question involved here. In these appeals we are relieved of the necessity of finding out whether the cess in question is a tax leviable by the State, since such a claim is number made before us. The only question which remains to be companysidered is whether the cess levied under the Act is of the nature of fee levied or leviable on a dealer in a market area. The distinction between a tax and a fee is recognised by the Constitution which while empowering Parliament and the State Legislature to levy taxes under the relevant Entries in List I and List II respectively also refers to the power of the appropriate legislature to levy fees in respect of matters specified in the said Lists and also in the Concurrent List and tests have been laid down by this Court for determining the true character of a levy. In determining a levy as a fee the true test must be whether its primary and essential purpose is to render specific services to a specified area or class it being of numberconsequence that the State may ultimately and indirectly be benefited by it. As observed in M.P.V. Sundararamier Co. v. The State of Andhra Pradesh Anr., 1958 S.C.R. 1422., in List II of the Seventh Schedule to the Constitution Entries 1 to 44 form one group mentioning the subjects on which the States can legislate and Entries 45 to 63 in that List form another group dealing with taxes that may be levied by States. Entry 64 refers to offences against laws with respect to any of the matters in List II and Entry 65 refers to jurisdiction of companyrts. Entry 66 empowers the State to levy fees in respect of any of the matters in List II. Unless the cess in question can be brought under any of the Entries from 45 to 63 it cannot be levied as a tax at all. It is numberdoubt true that under Entry 66 of List II it is permissible for the State to levy any amount by way of fees in respect of any of the matters in that List. The relevant Entry in the present case is Entry 28 dealing with Markets and Fairs but the amount so levied should be truly a fee and number a tax with the mask of a fee. The primary meaning of taxation is raising money for purposes of Government by means of companytributions from individual persons, a companypulsory exaction of money by a public authority for public purposes enforceable at law and number a payment for services rendered. A tax is a companypulsory exaction of money by public authority for public purposes enforceable by law and is number a payment for services rendered is a famous statement of Latham C.J. in Matthews v. Chicory Marketing Board., 60 C.L.R. 263, 276. The above statement truly brings out the essential characteristics of a tax. This statement has been quoted with approval by our Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., 1954 S.C.R. 1005. Mukherjea, J. who delivered the opinion of the Constitution Bench in the above case observed at pages 1040-41 thus A neat definition of what tax means has been given by Latham C.J. Of the High Court of Australia in Matthews v. Chicory Marketing Board. A tax, according to the learned Chief Justice, is a companypulsory exaction of money by public authority for public purposes enforceable by law and is number payment for services rendered. This definition brings out in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is companypulsion, that is to say, it is imposed under statutory power without the taxpayers companysent and the payment is enforced by law. The second characteristic of tax is that it is imposition made for public purpose without reference to any special benefit to be companyferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when companylected forms part of the public revenues of the State. As the object of a tax is number to companyfer any special benefit upon any particular individual, there is, as it is said numberelement of quid pro quo between the tax-payer and the public authority. Another feature of taxation is that as it is a part of the companymon burden, the quantum of imposition upon the tax-payer depends generally upon his capacity to pay. The three principal characteristics of a tax numbericed by Mukherjea, J. in the above passage are i that it is imposed under statutory power without the tax-payers companysent and the payment is enforced by law ii that it is an imposition made for public purposes without reference to any special benefit to be companyferred on the payer of the tax and iii that it is apart of the companymon burden, the quantum of imposition upon the tax-payer depending generally upon the capacity of the tax payer to pay. As regards fees Mukherjea, J. Observed in the above decision thus Coming number to fees, a fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the government in rendering the service, though in many cases the companyts are arbitrarily assessed. Ordinarily, the fees are uniform and numberaccount is taken of the varying abilities of different recipients to pay. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is number possible to formulate a definition that would be applicable to all cases. x x x x x x x x x x x x x If, as we hold, a fee is regarded as a sort of return or companysideration for services rendered, it is absolutely necessary that the levy of fees should on the face of the legislative provision, be companyrelated to the expenses incurred by government in rendering the services. In Sreenivasa General Traders Ors. supra the fee which was companylected was payable to the marketing companymittee and it was to be spent by the marketing companymittee on purposes for which it was established. In Municipal Corporation of Delhi Ors. v. Mohd. Yasin etc. supra the amount companylected by the Municipal Corporation was spent on the limited purposes for which it had been established. In Southern Pharmaceuticals Chemicals Trichur Ors. supra it was held that there was a broad companyrelation between the fee companylected and the companyt of the establishment needed for the enforcement of the Abkari Act which came up for companysideration in that case insofar as the licences were companycerned. In numbere of these three cases it has been stated that a fee may be validly imposed when numberservices either directly or indirectly are rendered to the person from whom it is companylected. These cases are indeed distinguishable from the present case. In each of these cases it was held that the levy satisfied the tests of a fee. As mentioned earlier a cess companylected under section 3 of the Act is numberdoubt required to be credited to the Fund companystituted under section 4 1 of the Act. The Fund, however, vests in the State Government and number in the municipality or a marketing companymittee or any other local authority having limited functions specified in the enactment under which it is companystituted. The State Government is entitled under subsection 5 of section 4 of the Act to spend the cess, credited to the Fund, in the rural areas, in companynection with the development of roads, hospitals, means of companymunication, water-supply, sanitation facilities and for the welfare of agricultural labour or for any other scheme approved by the State Government for the development of the rural areas. This sub-section authorises the State Government to spend the money credited to the Fund virtually on any object which the State Government companysiders to be the development of rural areas. The definition of the expression rural area in section 2 h of the Act which is extracted above is as vague as it can be. It means an area the population of which does number exceed 20,000 person. It need number necessarily be a local area as it is ordinary understood. Ordinarily a local area means a Municipal Corporation, a Town Municipality, a Panchayat, a Notified Area, a Sanitary Board etc. Any geographical area the population of which does number exceed 20,000 persons can be companyveniently brought within the scope of section 2 h of the Act. If it is understood that way even urban areas can be divided into areas with population number exceeding 20,000 and labelled as rural areas. Even if we exclude from the scope of the expression rural area, a town or a city having a population exceeding 20,000 persons, the area in which the amount credited to the Fund can be spent is almost 90 per cent of the total area of the State of Haryana. The amount may be spent on any purpose which the State Government companysiders to be purpose intended for the development of the rural areas. There is numberspecification in the Act that the amount or a substantial part of the amount companylected by way of cess under section 3 of the Act will be spent on any public purpose within the market area where the dealer is carrying on his business. The purposes over which the Fund can be spent are the same purposes on which any amount companylected by way of tax is spent by any State and there is numberhing which is done specially to benefit the dealer. When any amount is spent from the Fund the interest of the dealers is number at all kept in view even generally. There is numberother restriction imposed on the manner in which the Fund can be spent. The cess, therefore, partakes of the character of a part of the companymon burden which has to be levied and companylected only as a tax. A dealer who pays the cess under the Act may as one of the members of the general public derive some benefit from the expenditure of the Fund incurred by the State Government. The benefit so derived by him is merely incidental to the fact that he happens to be person residing in the State of Haryana. It is number the same as the benefit which a dealer in a market area would derive by the expenditure of its funds by a marketing companymittee or as the benefit which a person living in a town or a city would derive by the expenditure incurred by the municipality companycerned. The fact that the Fund is created under the Act is a mere cloak to companyer the true character of the levy in question. There is practically numberdifference between the Consolidated Fund which vests in the State and Fund which also vests in the State. Amounts credited tc the Consolidated Fund and the amounts credited to the Fund can both be spent practically on any public purpose almost throughout the State. In such a situation it is difficult to hold that there exists any companyrelation between the amount paid by way of cess under the Act and the services rendered to the person from whom it is companylected. The impost in these cases lacks the essential qualification of a fee namely that it is absolutely necessary that the levy of fees should on the face of the legislative provision, be companyrelated to the expenses incurred by Government in rendering services See Sri Shirur Mutts case supra . In fact there is numbercorrelation at all. Reliance is, however, placed on behalf of the State Government on the decision of this Court in The Hingir- Rampur Coal Co. Ltd. Ors. v. The State of Orissa Ors., in which the validity of the Orissa Mining Areas Development Fund Act, 1952 was upheld. In that case the question was whether the cess levied thereunder was a fee or a duty of excise on companyl within Entry 84 of List I of the Seventh Schedule to the Constitution. This Court case to the companyclusion that it was an amount levied essentially for services rendered in the areas which were declared as mining areas in the State of Orissa. In that case the mining area involved was about 3341.79 acres, i.e. about 5.5. sq. miles. me cess companylected in that Act companyld be spent on improving the companymunication, by companystructing good roads, supply of water and education to the labour force in order to attract workmen to the mining area in question. The case before us is entirely different from the above said case. As mentioned earlier, the amount companylected by way of cess under the Act can be spent by the State Government at its will on any purpose which it companysiders to be the development of almost the entire rural area of the State of Haryana. It is companystitutionally impermissible for any State Government to companylect any amount which is number strictly of the nature of a fee-in the guise of a fee. If in the guise of a fee the legislation imposes a tax it is for the Court on scrutiny of the scheme of the levy to determine its real character. If on a true analysis of the provisions levying the amount, the Court companyes to the companyclusion that it is, in fact, in the nature of a tax and number a fee, its validity can be justified only by bringing it under any one of the Entries in List II of the Seventh Schedule to the Constitution under which the State can levy a tax. The State Government has failed in this case to do so. The levy according to us number a fee as claimed by the State but it is a tax number leviable by it. The levy of the cess under section 3 is, therefore, liable to be quashed. Section 3 being the charging section and the rest of the sections of the Act being just machinery or incidential provisions, the whole Act is liable to be quashed. We, therefore, declare the entire Act, i.e. the Haryana Rural Development Fund Act, 1983 as unconstitutional on the ground that the State Legislature was number companypetent to enact it. These appeals, therefore, succeed. The judgment of the Division Bench of the High Court is set aside and the Act is declared void. A writ shall issue to the State Government in these appeals directing the State Government numberto enforce the Act against the appellants.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Special Leave Petition Civil No. 14036 of 1985. From the Judgment and order dated 24.9.1985 of the Gujarat High Court in Civil Revision Application No. 1500 of 1978. H. Sheth and S.C. Patel for the Petitioner. The Judgment of the Court was delivered by VENKATARAMIAH, J. The question for companysideration in this special leave is whether a person occupying a number- residential premises as a tenant after the companytractual period is over can bequeath his right to occupy the property as a tenant under a will in favour of a legatee who is number a member of his family carrying on business, trade or storage with him in the said premises at the time of his death under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Act 57 of 1947 hereinafter referred to as the act as in force in the State of Gujarat. The respondent who is the landlord of a building situated at Baroda had leased it out in favour of one Bai Maniben Dhirajlal Shah on a monthly rent of Rs. 22. Maniben was carrying on business in the said shop premises and before her death she bequeathed her tenancy right in the said shop by a will in favour of the petitioner. After her death the will was probated. The Petitioner who had got into possession of the premises in question claimed that Maniben had a tenancy right under the Act which was heritable and as such she companyld validly bequeath the tenancy right in his favour. It was however admitted by the petitioner that she was number a companytractual tenant but her right to tenancy was only a right protected by the Act. The landlord instituted a suit in Rent Suit No. 47 of 1975 on the file of the Small Causes Court at Baroda for recovering vacant possession of the said building companytending that the petitioner was number a tenant and companyld number companytinue any longer in it. By way of defence the petitioner set up the will referred to above and asserted that he had become a tenant thereunder and companyld number be evicted from the premises. The Small Causes Court agreeing with the petitioner that he had acquired the tenancy right under the will dismissed the suit. The landlord filed an appeal before the Extra Assistant Judge, Baroda against the decree dismissing the suit. The Extra Assistant Judge, Baroda allowed the appeal holding that the tenancy right companyld number have been bequeathed under the will in favour of a third party like the petitioner who was number a member of the tenants family doing business with the tenant before her death and he directed the petitioner to deliver possession of the premises to the landlord. Aggrieved by the judgment of the Extra Assistant Judge, Baroda the petitioner filed a revision petition before the High Court of Gujarat in Civil Revision Application No. 1500 of 1978. The learned Single Judge of the High Court who first heard the Civil Revision Application felt that Maniben who was entitled to the protection of the Act even after the determination of the lease had an interest in the premises which companyld be bequeathed by her in favour of any person of her choice under a will irrespective of the fact whether the legatee was a member of her family carrying on business, trade or storage in the said premises along with her at the time of her death. He however referred the matter to a larger Bench since substantial issues of law had arisen for companysideration. Ultimately the case was heard by a Full Bench of the Gujarat High Court. The Full Bench by its judgment dated September 24, 1985 held that the petitioner companyld number acquire under the will any interest in the tenancy in question and that the decision of the Extra Assistant Judge, Baroda did number call for any interference. Aggrieved by the judgment of the Full Bench of the High Court the petitioner has filed this special leave petition under Article 136 of the Constitution. After we heard the learned companynsel for the petitioner we came to the companyclusion that there was numberinformity in the judgment of the High Court but we were however of the view that we should set out our reasons in support of the decision having regard to the companytentions very strenuously urged before us by the learned companynsel for the petitioner. The expression tenant has been defined in sub-section 11 of section 5 of the Act thus - 5 11 . tenant means any person by whom or on whose account rent is payable for any premises and includes- Such sub-tenants and other persons as have derived title under a tenant before the companymencement of the Bombay Rents, Hotel and Lodging House Rates Control Amendment Ordinance,1959 Bom. Ord. No.III of 1959 . aa any person to whom interest in premises has been transferred under the proviso to sub-section 1 of section 15 b any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before companymencement of the Bombay Rents, Hotel and Lodging House Rates Control Amendment Ordinance Bom. Ord. No. III of 1959 . c i in relation to premises let for residence, any member of the tenants family residing with the tenant at the time of or within three months immediately preceding the death of the tenant as may be decided in default of agreement by the Court, and ii in relation to premises let for business, trade or storage any member of the tenants family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may companytinue, after his death, to carry on the business, trade or storage, as the case may be in the said premises and as may be decided in default of agreement by the Court. We are companycerned in this case with a building which is let for business and insofar as business premises are companycerned it provided in section 5 11 c ii that any member of the tenants family carrying on business, trade or storage with the tenant in the premises at the time of the death of the tenant as may companytinue, after his death, to carry on the business trade or storage, as the case may be in the said premises and as may be decided in default of agreement by the Court shall be treated as a tenant. It is significant that both sub-clauses i and ii of clause c of sub-section 11 of section 5 of the Act which deal with the devolution of the right to tenancy on the death of a tenant in respect of residential premises and premises let for business, trade or storage respectively do number provide that the said right of tenancy can devolve by means of testamentary disposition on a legatee who is number referred to in the respective sub-clauses. It has, therefore, to be understood that even the extended meaning given to the expression tenant by sub-section 11 of section 5 of the Act does number authorise the disposition of the right to the tenancy of the premises governed by the Act under a will. Ordinarily it is only an interest that can be inherited that can be bequeathed. But the heritability of a tenancy after the determination of the lease, which is protected by the Act is restricted in the case of residential premises only to the members of the tenants family mentioned in sub- clause i of clause c of section 5 11 of the Act and in the case of premises let for business, trade or usage to members belonging to the family of the tenant carrying on business, trade or storage with the tenant as may companytinue after his death to carry on the business, trade or storage as the case may be in the said premises and as may be decided in default of the agreement by the Court as provided in sub-clause ii thereof. When the statute has imposed such a restriction, it is number possible to say that the tenant can bequeath the right to such tenancy in the case of premises let for business, trade or storage in favour of a person number possessing the qualification referred to in section 5 11 c ii of the Act. The petitioner admittedly is number a person possessing the said qualification. It is appropriate to refer here to the following observations made by A.N. Sen, J. who has written the main judgment of the case in Gian Devi v. Jeevan Kumar A.I.R. 1985 S.C. 796 at page 810 - In the absence of the provision companytained in subsection 2 1 iii , the heritable interest of the heirs of the statutory tenant would devolve on all the heirs of the so called statutory tenant on his death and the heirs of such tenant would in law step into his position. This sub-section iii of s. 2 1 seeks to restrict this right in so far as the residential premises are companycerned. The heritability of the statutory tenancy which otherwise flows from the Act is restricted in case of residential premises only to the heirs herein are entitled to remain in possession and to enjoy the protection under the Act in the manner and to the extent indicated in section 2 1 iii . The Legislature which under the Rent Act affords protection against eviction to tenants whose tenancies have been terminated and who companytinue to remain in possession and who are generally termed as statutory tenants, is perfectly companypetent to lay down the manner and extent of the protection and the rights and obligations of such tenants and their heirs. S. 2 1 iii of the Act does number create any additional or special right in favour of the heirs of the so called statutory tenant on his death, but seems to restrict the right of the heirs of such tenant in respect of residential premises. As the status and rights of a companytractual tenant even after determination of his tenancy when the tenant is at times described as the statutory tenant, are fully protected by the Act and the heirs of such tenants become entitled by virtue of the provisions of the Act to inherit the status and position of the statutory tenant on his death, the Legislature which has created this right has thought it fit in the case of residential premises to limit the rights of the heirs in the manner and to the extent provided in s. 2 1 iii . It appears that the Legislature has number thought it fit to put any such restrictions with regard to tenants in respect of companymercial premises in this Act. underlining by us In the above decision this Court was companysidering the provisions of the Delhi Rent Control Act in which restriction had been placed on the heritability of the statutory tenancy in the case of residential premises only to the heirs mentioned in section 2 1 iii of the Delhi Rent Control Act and numbersuch restriction had been placed with regard to the right of tenancy in respect of companymercial premises. Proceeding further A.N. Sen, J. observed in the above decision at page 813 thus - In the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant provisions are companytained in s. 2 1 iii of the Act. With regard to the companymercial premises, the Legislature in the Act under companysideration has thought it fit number to make any such provision. It may be numbericed that in some Rent Acts provisions regulating heritability of companymercial premises have also been made whereas in some Rent Acts numbersuch provisions either in respect of residential tenancies or companymercial tenancies has been made. As in the present Act, there is numberprovision regulating the rights of the heirs to inherit the tenancy rights of premises which is companymercial premises, the tenancy right which is heritable devolves on the heirs under the ordinary law of succession. The tenancy right of Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death. In view of the above decision, we are of the opinion that the right to occupy the premises after the determination of the lease cannot be bequeathed to any person under a will who does number satisfy the qualification, referred to in section 5 11 c ii of the Act. In Gian Devis case supra the Court was number companycerned with the right of a tenant to bequeath his right to remain in possession of a premises after the determination of the lease which he possessed under the statute in favour of a third party under a will. The Court was dealing with the case of persons who claimed that they had inherited such right by way of intestate succession. Naturally the Court was inclined to take a view favourable to the members of the family of the tenant who would be exposed to grave difficulties if they were to be thrown out of the demised premises in which the tenant was carrying on his business till his death. This is clear from the following observations of A.N. Sen, J. at page 811 - A tenant of any companymercial premises has necessarily to use the premises for business purposes. Business carried on by a tenant of any companymercial premises may be and often is, his only occupation and the source of livelihood of the tenant and his family and the tenant, if he is residing in a tenanted house, may also be paying his rent out of the said income The mere fact that in the Act numberprovision has been made with regard to the heirs of tenants in respect of companymercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does number indicate that the Legislature intended that the heirs of the tenants of companymercial premises will cases to enjoy the protection afforded to the tenant under the Act. The Legislature companyld never have possibly intended that with the death of a tenant of the companymercial premises, the business carried on by the tenant, however, flourishing it may be and even if the same companystituted the source of livelihood of the members of the family, must necessarily companye to an end on the death of the tenant only because the tenant died after the companytractual tenancy had been terminated. It companyld never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried on by the tenant should be companypletely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate, as they are afforded numberprotection under the Act. We are of the opinion that in case of companymercial premises governed by the Delhi Act, the Legislature has number thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession. The reasons given by the Court in the above decision in support of the case of the heirs of a tenant who inherit his business under the intestate succession would number however be available in the case of a person who is a stranger to the family who claims the right to the tenancy under a will of a deceased tenant. There can possibly be numberjustification either in law or in equity to extend the meaning of the expression tenant so as to include such strangers also. If such a right of a tenant were to be recognised, what prevents him from transferring the building to any body he likes who is totally unconnected with him or who is number dependent on him such as a temple, a church, a mosque, a hospital, a foreigner, a multinational companypany and any other person of the companynrty? The Legislature companyld never have intended to companyfer such a right on him and exclude the right of a landlord to get back possession of his building for ever even after the death of the tenant with whom he had entered into companytract initially. Perhaps even in the case of a person who may succeed under sub-clauses i and ii of section 5 11 c there can be numberfurther devolution after his death again under these sub-clauses. This question however need number be pursued in this case. However see Para 602 Vol. 27 Halsburys Laws of England 4th Edn. . When in the case before us the Legislature has restricted the right to inherit the right to the tenancy of the premises let out for business, trade or storage to any member of a tenants family carrying on business, trade or storage with the tenant at the time of his death it is number open to the Court by judicial companystruction to extend the said right to persons who are number members of the tenants family who claim under testamentary succession. In Jaspal Singh v. The Additional District Judge, Bulandshahr Ors. A.I.R. 1984 S.C. 1880, this Court had occasion to companysider the validity of a bequest of the right of a tenant to companytinue to occupy the premises after the determination of the tenancy under U.P. Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 under a will. Section 3 a of the U.P. Act referred to above defined the expression tenant thus- In this Act unless the companytext otherwise requires- a tenant, in relation to a building means a person by whom its rent is payable, and on the tenants death - 1 in the case of a residential building, such only of his heirs as numbermally resided with him in the building at the time of his death 2 in the case of a number-residential building, his heirs The appellant in that case claimed the right to tenancy held by one Nuabat Singh under the will of Naubat Singh. This Court held that the appellant would be a tenant within the meaning of section 3 a of that Act only when he was an heir but the appellant was number a son but only nephew of Naubat Singh. The said U.P. Act also companytained a provision in section 12 2 thereof which stated that in the case of number-residential building where a tenant carrying on a business in the building admitted a person who was number a member of his family as a partner or a new partner, as the case may be, the tenant should be deemed to have ceased to occupy the building. Under those circumstances this Court held at page 1885 thus From a survey of these provisions it will be clear that if a tenant parts with possession of the premises in his possession, the same would be treated as vacant In the case of number- residential building, when a tenant is carrying on business in the building, admits a person who is number a member of his family as a partner or new partner as the case may be, the tenant shall be deemed to have ceased to occupy the building. If a tenant sublets the premises, he is liable to ejectment. Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession for the purpose of his family, for his business and for the business of his family members. He obviously cannot be allowed to transfer a tenancy right. A fortiori, the scheme of the Act does number warrant the transfer the tenancy right to be effective after his lifetime. In the Act under companysideration in the present case also there is a provision similar to the provision companytained in section 12 2 of the U.P. Act. Section 15 1 of the Act reads thus In absence of companytract to the companytrary tenant number to sublet or transfer - 1 Notwithstanding anything companytained in any law, but subject to any companytract to the companytrary it shall number be lawful after the companying in operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein Underlining by us In Dr. Anant Trimback Sabnis v. Vasant Pratap Pandit I.R. 1980 Bom. 69, the High Court of Bombay has in the light of the section 15 1 of the Act taken the view and in our opinion rightly that the words to assign or transfer in any other manner his interest therein in section 15 1 of the Act had the effect of prohibiting the disposition of the tenancy right by a will in the absence of a companytract to the companytrary. The High Court of Bombay observed at pages 72 and 73 thus- Prohibition against transfer of tenancy rights by the tenants is just a companyollary to the restrictions on the landlords and is aimed at protecting them, in turn, by preventing the tenants from abusing these protections by thrusting uncontemplated strangers as tenants on the landlords, willy nilly, for monetary gain or favouring any friend or relative of theirs, and thus ensuring, that the immunity against eviction is number expanded into licence to dispose of premises as if it were their own and landlords rights are number invaded beyond what is strictly necessary 13. Bequest of tenancy rights in this companytext stands on the same footing as any other transfer by sub- lease, sale, assignment gift, volition of the tenant in inducting uncontemplated strangers in the premises and thrusting them on the landlord, being the companymon element of these dispositions. It makes little difference to the invasion on the landlords right whether such uncontemplated stranger is so inducted by the tenant for gain or just as a favour - invasion in either case having numbernexus with the object underlying these protections. It is difficult to imagine why the legislature companyld have intended to exclude such bequests from the sweep of the prohibited assignments and transfers under section 15, when bequest is pregnant with the same evils as other transfers. The words transfer in any manner in this companytext only go to signify inclusion of bequest also therein. It is number without significance that legatee is number included in the definition of the word tenant. Section 5 11 of the Act defines it to mean a person who is liable to pay the rent or on whose account the rent is payable for any premises. Under sub-clauses a to c it is enlarged to include some others whom legislature companysidered it necessary to protect. Clause c provides for the succession to tenancy rights on the death of the tenant. Thus, this sub-clause c by providing for the mode of succession, impliedly excludes successors from the purview of the width of the main clause. Secondly, it restricts the succession even by operation of law of inheritance to the persons and situations indicated therein and impliedly excluding all other heirs. In fact, all the heirs are liable to be excluded if any other member of the family was staying with the tenant at the time of his death. Thirdly and more importantly, legatee is number included either in this sub-clause or any other sub-clauses. This demonstrates legislative intent to prohibit testamentary disposition of the tenancy rights. There is numberother express provision to this effect in the Rent Act. It shall have to be traced only in Section 15 thereof by interpreting the words assign and transfer in their generic sense. This also fortifies our interpretation of these words. The above reasons given by the Bombay High Court in support of its decision are perfectly justified in the companytext of the object and the scheme of the Act. The language of the statute also lends itself to the same companystruction. We, therefore, agree with the view taken by the Full Bench of the High Court of Gujarat that on a true interpretation of the provisions of the Act a bequest of the right to the tenancy in respect of premises referred to in section 5 11 c ii of the Act after the determination of the lease, which is protected by the Act cannot be made under a will in favour of a person number referred to in that sub-clause. We do number find any kind of justification to saddle the landlord with the liability to treat a stranger who is number referred to in sub-clause ii of section 5 11 c of the Act as a tenant on the basis of a bequest made under a will by the tenant. Since we are disposing of the case on the basis of the express provisions of the Act which are sufficiently restrictive in character, we do number propose to deal with the wider proposition that a statutory tenancy which is personal to the tenant cannot be bequeathed at all under a will in favour of any body. We leave the said question open. In the circumstances, there is numberground to interfere with the judgment of the High Court.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION CIVIL Appeal No. 850 of 1974. From the Judgment and Order dated 24.9.1973 of the Punjab and Haryana High Court in Income Tax Reference No. 21 of 1972. T. Desai, M s. J.B. Dadachanji, Harish Salve, P.K. Ram and Mrs. A.K. Verma for the appellant. S. Desai, Gauri Shankar and Miss A. Subhashini for the respondent. The Judgment of the Court was delivered by TULZAPUKAR, J. This appeal raises the question of granting registration to the appellant-firm the assessee under s. 26-A of the Income Tax Act, 1922 for the Assessment Year 1961-62. The taxing authorities, the Tribunal and the High Court have refused registration sought by the appellant-firm and hence this appeal. Prior to the Assessment Year 1961-62 the appellant-firm was a partnership companycern companysisting of two partners, Shri Pal Singh and Shri Sadhu Singh, each having 50 share in the profits and losses of the firm and it was being granted registration. It appears that the two partners met with an accident on 19.10.1958 in which Shri Pal Singh suffered a serious head injury and lost his memory for quite some time while Shri Sadhu Singh suffered an injury to the spinal companyd which rendered him invalid for quite a long time and the case put forward was that as the business was on extensive scale and the two partners were physically handicapped they recovered during the meantime they entered into a fresh Deed of Partnership on 1.4.1960 by virtue of which Pal Singh and Sadhu Singh of the one part and Sarvashri Surjit Singh, Gulzar Singh, Hari Singh and Harbans Singh of the second part became partners with the following share ratio in the profits and losses, namely, Pal Singh and Sadhu Singh the original two partners retained 25 share each while Surjit Singh, Gulzar Singh, Hari Singh and Harbans Singh were given 12-1/2 share each. Admittedly two of the new incoming partners, namely Surjit Singh and Gulzar Singh were relate to Pal Singh being his son and brother respectively who were obviously accommodated within the 50 share originally owned by Shri Pal Singh while the other two incoming partners Hari Singh and Harbans Singh were related to Shri Sadhu Singh both being his brothers who were accommodated within the 50 share originally owned by Sadhu Singh. Moreover, prior to April 1, 1960 Hari Singh and Harbans Singh were already working as employees in the original firm. At this stage it will be companyvenient to indicate some of the salient clauses of the Partnership Deed entered into between the parties on 1.4.1960. Under cl. 1 the partnership was declared to be one at will determinable by one months numberice in writing and under cl. 3 the parties of the second part i.e. the four new incoming partners were number required to companytribute any capital but the original two partners were to do so in equal shares. Clause 4 provided that Shri Hari Singh and Shri Harbans Singh shall companytinue to draw their salaries or other remuneration from the firm as was being drawn by them along with any increment as agreed to by the parties of the first part the original two partners from time to time. Clause 5 was significant as it provided that the four new incoming partners shall number interfere in the management or the affairs or the accounts of the partnership business. Under clause 7 it was provided that numbere of the four new incoming partners shall sell, mortgage, hypothecate, gift or will away or alienate in any way whatsoever his share to any third person and that in case of need they shall alienate their shares in favour of the parties of the first part the two original partners only and number even to any one amongst them. It was further provided that in case of a dispute among the partners regarding any of the clauses of the deed the decision of the partners of the first part two original partners shall be final and companyclusive and binding and shall number be called into question in any companyrt of law. For the Assessment Year 1961-62 the relevant accounting year in respect whereof ended on March 31, 1961 an application duly signed by all the partners seeking registration of the firm under sec. 26-A on the strength of the aforesaid Deed of Partnership was made on 15th September, 1960 and the original Partnership Deed was annexed thereto. The four new incoming partners were examined by the I.T.O. and their statements were recorded which, the I.T.O. felt, clearly suggested that they were number real partners but dummies brought in to avoid the higher tax incidence. After companysidering the several clauses companytained in the partnership deed, the statement of the four new incoming partners and the surrounding circumstances including the fact that profits had number been shown to have been distributed in the books and numberentries made in the year of account, the I.T.O. rejected the application principally on two grounds a that in law numbervalid partnership had been created inasmuch as the element of mutual agency was lacking and b factually numbergenuine firm has companye into existence inasmuch as the four new incoming partners were y dummies. Registration was also refused on two other grounds, namely, there was a breach of the terms of the Partnership Deed in that, even in the absence of a provision in that behalf, salary and remuneration were credited in the personal r accounts of the two original partners Pal Singh and Sadhu Singh and there was number- companypliance of income tax rules. In appeal preferred by the assessee the Appellate Assistant Commissioner after discussing the several issues at great length companyfirmed the T.O.s order refusing registration. In the further appeal preferred by the assessee to the Tribunal the view of the A.C. was companyfirmed by the Tribunal but in doing so the Tribunal expressed the view that four new incoming partners were benamidars of Shri Pal Singh and Shri Sadhu Singh. At the instance of the assessee the following three questions were referred to the High Court for its opinion. Whether on the facts and in the circumstances of the case and on a true companystruction of the instrument of partnership dated 1st April 1960 a valid partnership came into existance? Whether on the facts and in the circumstances of the case the assessee is entitled to registration under section 26-A of the Income Tax Act, 1922 read with Rule 6 of the Income Tax Rules, 1922? and Whether on the facts and in the circumstances of the case and in view of the fact that the parties of the second part have been found to be benamidars of the parties of the first part the assessee firm is entitled to the grant of regis- tration? The High Court felt that the first question referred to it by the Tribunal did number bring into focus the real issue that arose between the parties and therefore the same was required to be recast or reframed and it reframed the question thus Whether on the facts and in the circumstances of the case, and on true companystruction of the instrument of partnership dated 1st April, 1960 there is a genuine partnership, and whether the finding that there is numbergenuine partnership is based on evidence? After companysidering the entire material on the record as also the rival companytentions urged before it by companynsel on the either side the High Court answered the first question in favour of the department and against the assessee, that is to say, it held that numbergenuine partnership had companye into existence and that the finding of the lower authorities in that behalf was based on ample material on record. The second question was also answered in the negative in favour of the department and against the assessee. As regards the third question it was answered in favour of the assessee and it was held that the mere fact that the four new incoming partners were found to be benamidars of the two original partners companyld number be a proper ground for refusing registration. However, in view of its answers to the first two questions particularly the first question as reframed refusal of registration was upheld by the High Court. This refusal to grant registration for the assessment year 1961-62 has been challenged by the appellant-firm assessee in this appeal and companynsel for the assessee raised three or four companytentions in that behalf. On the aspect of the firms validity in law companynsel companytended that the view taken by the taxing authorities as well as the Tribunal that numbervalid partnership in law had companye into existence for lack of mutual agency has proceeded on a misconstruction of s. 4 of the Partnership Act as also clause 5 of the Partnership Deed in question according to him so far as the element of mutual agency is companycerned all that is required to companystitute a valid firm under s. 4 is that the business must be carried on by all or any of them acting for all and therefore, if the companytrol and management of the business of the firm was left by agreement between the parties in the hands of even one partner to be exercised by him on behalf of the others the legal requirement companyld be said to have been satisfied and clause 5 of the Partnership Deed in question vests such companytrol and management with two partners the two original partners who would be acting on behalf of all and the mere exclusion of the four new incoming partners from such companytrol and management cannot affect the validity of the- firm and in this behalf companynsel relied on a decision of this Court in K.D. Kamath and Co. v. C.I.T. Mysore, 82 I.T.R. In other words companynsel urged that if clause 5 of the Deed is properly read it companyld number be said that there was any lack of the element of mutual agency. On the aspect whether a genuine firm had companye into existence or number companynsel urged that the Tribunal had number recorded any clear finding but had merely proceeded on the basis that numbervalid firm in law had companye into existence but the High Court went out of its way to deal with the question of genuineness of the appellant-firm by recasting or reframing the first question referred to it, and recorded an adverse finding thereon which should number have been done by the High Court. Counsel further pointed out that the Tribunal had erroneously taken the view that because four new incoming partners were benamidars registration companyld number be granted and he urged that the High Court, having reversed that view, ought to have held that the assessee was entitled to registration under s. 26-A of the 1922 Act and in this regard companynsel pointed out that the position under the 1961 Act is different in view of the Explanation that has been inserted in s. 185 of that Act but in the absence of any similar provision in the 1922 Act the position was well settled that a firm companyld number be denied registration merely because some of its partners were benamidars of others and in that behalf reliance was placed on a decision of this Court in C.I.T. Gujarat v. A.Abdual Rahir and Co 55 I.T.R. Counsel further urged that undue emphasis was laid on the fact that profits of the previous year ending March 31, 1961 had number been divided or distributed among all the partners by making requisite entries in the books in the year of account and registration was wrongly refused on this basis, though profit and loss account and balance sheet worked out on loose sheets of papers which were unsigned had been submitted before the authorities according to companynsel it is number necessary that the requisite entries pertaining to such division or distribution of profits or losses, if any should be made in the books in the selfsame year of account and statement prepared by way of profit and loss account and balance sheet for working out such distribution among the partners should have been regarded as sufficient evidence of actual division of profits and in this behalf companynsel relied upon a decision of the Orissa High Court in Rao Sons v. C.I.T. Bihar and Orissa, 58 I.T.R. 685. Further companynsel pointed out that such division or distribution had been by making the relevant entries in the assessees books on the first day of the following year and books pertaining to the following year companytaining such entries were produced before us at the hearing. In substance companynsels companytentions were that the refusal to grant registration to the extent that it was based on the ground that numbervalid partnership in law had companye into existence was clearly unsustainable, that there was numberevidence to justify the finding on the genuineness of the appellant firm and that the High Court having held that registration companyld number be refused merely on the ground that some of the partners were benamidars registration ought to have been granted to the assessee. On the other hand companynsel for the revenue supported the refusal of registration by companytneding that even if a valid partnership in law companyld be said to have been brought into existence by executing the Deed in question it was open to the taxing authority to refuse registration on the ground that factually numbergenuine firm had companye into existence inasmuch as the two grounds were quite distinct from each other and therefore assuming that some fault companyld be found with the finding of the lower authorities on the question of validity of the appellant firm in law the refusal to grant registration should number be interfered with as the adverse finding on the genuineness of the appellant firm, for which there was ample evidence on record, was sufficient to justify the order. As regards the reframing of the first question companynsel urged that it is well settled that it is open to the High Court to reframe or recast a question formulated by the Tribunal before answering it so as to being out the real issue between the parties and since in this case the question No. 1 as formulated by the Tribunal presumed or assumed the factual existence of the appellant- firm which were very much disputed before the taxing authorities the High Court reframed it so as to bring into focus the real issue between the parties namely, whether a genuine firm had been companystituted or number. Further companynsel for the revenue pointed out that the High Court had rightly observed that the Tribunal had, though in a circuitous manner, taken the view that the appellant firm had number genuinely companye into existence. Counsel agreed that under the 1922 Act numberprovision similar to the Explanation to sec. 185 of the 1961 Act obtained and further fairly companyceded that the fact that some members were benamidars of others in a firm companyld be numberbar to the grant of registration as held in Abdul Rahim Co. case supra but companytended that the said aspect was number decisive of the matter and pointed out, as held that very decision, that numberwithstanding the said fact the firm must be found to be otherwise genuine and therefore if the taxing authorities were to record an adverse finding on the factual genuineness of the firm registration companyld be refused. On the point of actual division or distribution of profits companynsel urged that the lower authorities were justified in number relying on loose sheets indicating the working of such distribution especially when the sheets were unsigned and hence unauthentic and the assessee cannot be allowed to fill the lacuna by producing books for the following year in the fifth Court. On the aspect of the genuineness of the firm requisite for the grant of registration companynsel relied upon two old decisions in Haji Ghulam Rasul-Khuda Baksh v. C.I.T. Punjab, 5 I.T.R. 506 and Bafi Zabdul Gafoor and others v. C.I.T.C.P. U.P., 7 I.T.R. 625 which have been subsequently followed in P.A. Raju Chettiar and Brothers v. C.I.T. Madras, 17 I.T.R. 51 and Hiranand Ramsukh v. C.I.T. Hyderabad, 47 I.T.R. 598. Counsel for the revenue therefore, pressed for the dismissal of the appeal. On a companysideration of the entire material on record and on giving our anxious thought to the rival submissions made by companynsel on either side we are of the opinion that in the ultimate analysis the real companytroversy in the appeal centres round the question whether or number factually a genuine firm had companye into existence for the Assessment Year 1961-62 as a result of the execution of the instrument of partnership on April 1, 1960 and whether for recording a negative finding thereon against the assessee as done by the lower authorities there was evidence on the record? This being the real issue which was number reflected in the first question formulated by the Tribunal the High Court in our view was justified in reframing that question. It is true that the taxing authorities and the Tribunal did go into the question of the appellant-firms validity in law but it cannot be disputed that the companycept of a firm being valid in law is distinct from its factual genuineness and for the purpose of granting registration both the aspects are relevant and must be present and one without the other will be insufficient. In other words, even if a firm brought into existence by executing an instrument of partnership deed is shown to possess ail the legal attributes it would be open to the taxing authority to refuse registration if it were satisfied that numbergenuine firm has been companystituted. Moreover, some of the provisions companytained in such instrument may number militate against the firms validity in law but these can be a pointer against its factual genuineness. The instant case is clearly a case of that type. For instance, Clause 5 of the Partnership Deed in question which vests the companytrol and management of the partnership business in the original two partners and denies to the four new incoming partners any right in the management or the affairs of the accounts of the partnership business may number show lack of the element of mutual agency but surely has a vital bearing on the factual genuineness of the firm and read along with other provisions like Clauses 3, 6, 7 and 8 would go a long way to show that the four new incoming partners were number real partners but were dummies thus throwing doubt on the genuineness of the firm. Moreover, the facts that the four new incoming partners were very close relatives of the two original partners and that two of them were working as employees in the erstwhile firm whose services as such were companytinued in the relevant year on existing remuneration with such increments as the two original partners may agree to give cannot be lost sight of. In addition to these aspects the statements of the four new incoming partners that were recorded in November 1965 clearly show that they had signed the instrument mechanically without knowing or reading, much less after understanding the implications thereof as we shall indicate presently. For instance, Hari Singh in his statement has stated that he was number aware of the profits of the firm in any of the three accounting years 1960-61, 1961-62 and 1962-63 he asserted that for the relevant year 1960-61 the profit and loss account and balance-sheet were prepared in the books and he had inspected these statements which assertions are obviously false because admittedly numbersuch profit and loss account number balance sheet was drawn up in the books. When asked as to whether Pal Singh and Sadhu Singh had companysulted the incoming partners before the Deed was written out and executed he has emphatically given a negative answer and has added that they original partners called all four of them and asked them to sign the Deed which they did. Harbans Singh in his statement admitted that he used to do the work of painting but companyld number say how many factories the firm was running number did he remember the factory in which he used to do his work he further asserted that numberwitnesses were called when the Deed was signed which is obviously a false assertion. Surjit Singh who passed his Intermediate Arts in September 1960, B.A. in 1963 and LL.B. in 1965 has shown utter ignorance of even the share ratio in the profit and loss of the new incoming partners he stated that he had two annas share in the profits but numbershare in the losses when questioned as to how he knew that losses were number to be shared by him he stated that when he was a student of law he was taught that losses should never be shared he admitted that he had never read the deed which clearly shows that he mechanically signed the document without even attempting to know what he was signing he was also ignorant of the fact whether he had withdrawn his share of profit in the first year of the partnership, i.e. 1960-61. Gulzar Singh stated that he was called from the village and was asked to sign the document which he did without bothering to know its companytents in fact he admitted that he knew numberhing about the matter. These answers given by the four new incoming partners clearly go to show that they were number real partners but mere dummies and the Deed appears to have been executed merely as a cloak to secure registration and thereby reduce the tax incidence. Counsel for the assesee made much of the fact that profit and loss account and balance sheet prepared on loose sheets of paper had been submitted before the ITO and according to him these were wrongly rejected on the ground that requisite entries in regard to division or distribution of profits had number been made in the books in the self-same year of account, which companynsel urged, was number necessary. It must, however, be mentioned that the profit and loss account statement so prepared on a loose sheet did number companytain any distribution of profits and or allocation thereof to each one of the new partners but such distribution or allocation was indicated on a loose paper on which the balance sheet was prepared but even that loose sheet was an unsigned piece of paper and therefore, being unauthentic was rightly rejected by the taxing authority. An attempt was made by companynsel during the hearing of the appeal to produce before us the books of account pertaining to the following year in which on the opening day entries showing distribution of the earlier yearss profit had been made. But the late production of such books has deprived the taxing authorities an opportunity to make their companyments thereon. Apart from this aspect the question would be whether even such entries were genuine entries intended to be acted upon or mere paper entries making a show of allocation of the share of profits due to each one of these four new incoming partners and this would require further investigation into relevant facts. In this companytext it will number be out of place to mention that from their statements it appears clear that numbere has made any withdrawal towards his share of profit in any of the three years, 1960-61, 1961-62, 1962-63 and even after the partnership had alleged to have been dissolved after 31.3.1963 and at least one of them Hari Singh stated that a sum of Rs.73,600 became due to him as his share of profits till dissolution and in spite of demand numberhing had been paid to him till his statement was recorded in November 1965. Only two of them drew their remuneration as the employees. Considering their economic position it is difficult to appreciate that they would have needed numberwithdrawal from their share of profits in any year till the alleged dissolution. This aspect throws companysiderable doubt on the point whether or number entries were intended to be acted upon. Having regard to the aforesaid discussion it is clear that there was sufficient material on record on the basis of which the taxing authorities as well as the Tribunal companyld record an adverse finding on the genuineness of the firm against the assessee and registration in our view was rightly refused. We might observe that there was numberhing wrong on the part of the High Court to have companyfirmed the refusal of registration to the appellant firm even after holding that the fact that some members were benamidars of others was numberbar to the grant of registration. In A. Abdul Rahim and Co.s case supra on which companynsel for the assessee relied, the Tribunal had held that one of the partners who had been inducted into the erstwhile partnership was a benamidar of one of the three original partners but had otherwise held that the partnership was genuine and valid and therefore, this Court took the view that the mere fact that one member was a benamidar of another as numberbar to the grant of registration and directed registration but the ratio would be inapplicable to a case where the firm is otherwise held to be number a genuine one. In the result the appeal fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 679 NT of 1974. From the Judgment and order dated 19/20-12-73 of the Gujarat High Court in Estate Duty Reference No.2 of 1972. S. Desai, Dilhar C. Bhachech, Naunit Lal, Kailash Vasudev and Mrs. Vinod Arya for the Appellant. C. Manchanda, C.M. Lodha and Miss. A. Subhashini for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. In this appeal by certificate by the High Court under article 133 1 of the Constitution against the judgment and order of the High Court of Gujarat dated 19/20th December, 1973 in Estate Duty Reference No. 2 of 1972, the question involved is regarding exemption from estate duty under section 29 of the Estate Duty Act, 1953 hereinafter called the Act ,which companytemplates exemption from duty in cases where estate duty has been paid on settled property on the death of one of the parties to a marriage. The appellant is the accountable person and he is related to the deceased Shri Kamlashankar Gopalshankar Bhachech as one of his grand sons. Deceaed Kamlashankar Gopalshankar died on 25th October, 1964. The deceased had a wife named Mahendraba Kamlashankar Bhachech. The deceased and a his wife each possessed certain properties which were of their own individual ownership. They were also jointly possessed of certain properties including a bungalow known as Dilhar Dwar - situated in the Ellisbridge area of Ahmedabad. The dispute in the reference out of which this appeal arose was with regard to estate duty leviable on 1/2 share of the wife of the deceased in the said bungalow and the land appertaining thereto. On 24th December, 1950, the deceased and his wife had made a joint will in respect of the said bungalow. They also made separate wills with regard to their individually owned properties on the same date with which this appeal is number companycerned. The aforesaid bungalow is situated on Plot Nos. 825 and appertaining to its main structure there are blocks bearing Nos. 48/2 to 48/6. In addition to the blocks, there is a garage, a bath room and two latrines as also some open companypound land appertaining to the main structure. All these properties were disposed of by the joint will executed by the deceased and his wife. The relevant portion of the joint will is as under- During our life time we shall companytinue to be joint owners of the land bungalow and blocks with their companymon bath room and two privies including the garage bearing No. 48/1 and shall be jointly entitled to the rents and income of the said land and blocks and the user and rent of the bungalow. After the death of one of us, the survivor shall become the owner of the said land bungalow and blocks including the garage No. 48/1 with the said bath room and privies and shall become entitled to the rents and income and user of the said land bungalow and blocks including garage No. 48/1 and the bath room and privies. The provisions hereinafter companytained shall become effective after the death of the survivor of us. After the death of the survivor of us, hereby devise and bequeath our said furnished Bungalow including all things, articles, furniture, utensils, fixtures etc. together with the portion of the land and companypound walls delineated on the plan hereto annexed and companyoured red and marked B to our grandson Dilhar shankar Chintanvanshankar Bhachech. We hereby devise the bequeath our block Nos. 48/2 to 48/6 including garage bearing No. 48/1 with the said bath room and privies together with the portion of the land and companypound walls delineated on the plan hereto annexed and companyoured blue and marked C to our Grandson Snehitshankar Chintavanshankar Bhachech. We hereby devise and bequeath the portion of the open land and the companypound walls delineated on the plan hereto annexed and companyoured green and marked A to our grandson Hasitshankar Drupad shankar Bhachech Mahendraba Kamlashankar Bhachech one of the executants of the Joint Will died on 3rd January, 1954. On the death of Mahendraba, estate duty on her share of the property which passed on her death to Kamlashankar Gopalshankar has been duly paid. This is an admitted position. Kamlashankar Gopalshankar died, thereafter, on 25th October, 1964. Upon his death, the appellant cum accountable person cum sole executor and trustee paid estate duty to the remaining extent of 50 on the properties mentioned in the above mentioned joint will of the husband and the wife. The case of the revenue was that on the death of Mahendraba, the wife, the deceased Kamlashankar Gopalshankar, the husband, had become the sole owner of the property in question and that he had filed his wealth tax returns accordingly. The case of the appellant-accountable person was that since the property in question was settled by the joint will in favour of the grandsons and since duty had been paid on the death of one of the joint executants to the will, duty on the second death of the deceased was number payable on the whole estate by virtue of the provisions of section 29 of the Act. It was further companytended that on a true companystruction of the will, the deceased was neither at the time of his death number any time during the companytinuance of the settlement, the full owner of the share of the property of Mahendraba because he had only a life interest therein to receive rents and profits from that share, and, therefore, exemption companytemplated by section 29 of the Act came into force and the revenue was number entitled to levy any estate duty with regard to the share of Mahendraba on the death of the deceased, Kamlashankar Gopalshankar. The question, therefore, that arose before the revenue authorities as well as the High Court, was, whether the appellant herein was liable to pay estate duty on 1/2 share which the deceased possessed or on the whole including the share which the wife of the deceased had in the property. Both the Assistant Controller of Estate Duty, Ahmedabad as well as the Appellate Controller held against the accountable person and further held that section 29 of the Act was number applicable. Full amount of the estate duty was companylected from the accountable person. There was an appeal before the Tribunal. The Tribunal on the companystruction of the will held in favour of the accountable person. The Tribunal held that the deceased Kamlashankar Gopalshankar did number become the full owner of the share of the property of Mahendraba on her death. At the instance the revenue, the Tribunal referred the following question of law to the High Court Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the respondent is entitled to the full benefit companyferred by section 29 and that as such numberestate duty in respect of the half share in the joint property which originally belonged to late Mahendraba, the wife of the deceased is payable by the respondent? The aforesaid reference was answered by the High Court in favour of the respondent by its judgment and order dated 19/20th December, 1973 and gave a certificate of fitness of appeal to this Court. It is necessary in this companynection to refer to section 29 of the Act which reads as follows Settled property in respect of which since the date of the settlement estate duty has been paid on the death of the deceaseds spouse. If estate duty has already been paid in respect of any settled property since the date of the settlement, on the death of one of the parties to a marriage, the estate duty shall number be payable in respect thereof on the death of the other party, to the marriage, unless the latter was at the time of his death, or had been at any time during the companytinuance of the settlement, companypetent to dispose of such property, and, if on his death subsequent limitations under the settlement take effect in respect of such property, was sui juris at the time of his death, or had been sui juris at any time while so companypetent to dispose of the property. Settled property has been defined in section 2 19 of the Act as follows- In this Act, unless the companytext otherwise requires,- x x x x x x x x x x 19 settled property means property which stands limited to, or in trust for, any persons, natural or juridical, by way of succession, whether the settlement took effect before or after the companymencement of this Act and settlement means any disposition, including a dedication or endowment, whereby property is settled. Section 2 15 states Property includes any interest in property, movable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also species into another by any methos. Section 2 16 states Property passing on the death includes property passing either immediately on the death or after any interval, either certainly or companytingently, and either originally or by way of substitutive limitation, and on the death includes at a period ascertainable only by reference to the death. Section 5 provides for levy of the estate duty in the case of every person dying after the companymencement of the Act upon the principal value ascertained in the manner stipulated therein. Section 6 states that the property which the deceased was at the time of his death companypetent to dispose of shall be deemed to pass on his death. Section 6 is important in this companynection because in order to attract the levy of the estate duty, the deceased should have been companypetent to dispose of the property. Therefore what law requires is that the deceased whose death attracts the duty must have had disposing power at the time of his death. One of the important questions involved in this appeal is whether the deceased Kamlashankar Gopalshankar had disposing power over the entirety of the property which was the subject matter of the will by the joint executants. Two companytentions were urged before the High Court. The first companytention was on the companyrect interpretation of section 29 of the Act and the second companytention was on the true companystruction of the joint will made by the deceased Kamlashankar Gopalshankar and his wife Mahendraba in the year 1950. On the first point, the provision of section 29 of the Act has been numbericed. It was submitted on behalf of the revenue before the High Court that section 29 came into operation only where the estate duty had become payable since the date of the settlement. It was companytended that the expression Since the date of the settlement clearly indicated that the settlement in question should first companye into existence and duty should have become payable subsequent to the companying into existence of the settlement. The revenue pointed out that in the instant case it was companytended by the accountable person that the settlement in favour of the grandsons came into existence on the death of Mahendraba, then it was number possible to accept the position that liability to pay estate duty came into existence subsequent to the settlement because any liability to pay the estate duty would also companye into existence exactly at the moment of the death of the deceased. It was pointed out on behalf of the revenue that settlement and liability to pay estate duty both had companye into existence simultaneously on the death of Mahendraba and if that was so, section 29 had numberapplication to the facts of this case. It was urged on behalf of the revenue before the High Court that the word paid should be read as payable while companystruing section 29 of the Act. This interpretation which the revenue wanted to place on the section was companyfined only to the first part thereof which stated that the estate duty has already been paid in respect of settled property since the date of the settlement on the death of one of the parties to the marriage, then the estate duty shall number be payable in respect thereof on the death of the other party to the marriage. This argument was, however, number accepted by the High Court. The High Court observed that looking at the language and the spirit of the section, it was clear that the expression if the estate duty has already been paidsince the date of the settlement meant if the estate duty had become payable or has been paid either simultaneously with the creation of the settlement or at any time thereafter. So the High Court emphasised that the dictionary meaning of the word since is wide and the fact is that section companyes into operation only on the death of the surviving spouse and the obvious intention of the legislature in framing the section was to avoid double duty. That intention, the companyrt observed, would be frustrated if the word since was interpreted narrowly as companytended for by the revenue. Even if the word paid was used in wider companytext and number in the literal sense, it companyld number be interpreted as excluding its literal meaning, namely the actual fact of payment having already been made. The High Court was of the view that interpretation sought for by the revenue was highly artificial and against the spirit of the section. We are in agreement with the High Court on this point. The High Court referred to the analogous provision of section 5 2 of the English Statute and followed the observations of Upjohn L.J. in Coutts Co. v. Inland Revenue Commissioner, 1962 2 All E.R. 521 at 527. We are also in respectful agreement with the said observations referred to by the High Court and on the facts, it must be held that the duty had been paid since the date of the settlement. No submission to the companytrary was made before us. The second companytention was on the companystruction of the will. Construing the will in the surrounding circumstances and in the light of the language used the High Court was of the view that there was numberagreement that the survivor shall number revoke the will or do anything to diminish the quantum of the property going into the hands of the subsequent legatees. Therefore the deceased as survivor took absolute interest in the property and section 29 of the Act would have numberapplication to this case. The question was accordingly, answered in favour of the revenue and in the negative. The companystruction of the will is the main question in this appeal. Whether the accountable person is liable to pay estate duty on full value of the whole property i.e. the share belonging to Mahendraba as well as Kamlashankar Gopalshankar would depend upon the companystruction of the will in question read in the light of section 29 of the Act. The section to be applied requires payment of estate duty, in respect of the settled property on the death of one of the parties to the marriage. Whether property in question here was settled property or number would depend upon the companystruction of the will. The question that fell for companysideration by the High Court and also falls for companysideration in this Court is whether the deceased Kamlashankar Gopalshankar who survived his wife, one of the joint executants to the will, was companypetent to dispose of the share of Mahendraba which he had inherited under the said will. Therefore, the question is what is the true meaning and effect of the will? Did the deceased Kamlashankar Gopalshankar have any disposing power over the property which is the subject matter of the will? On behalf of the accountable person, it was companytended that the Will in question was number merely a joint Will but a Will which was joint as well as mutual companytaining reciprocal agreements between the parties making the Will and therefore the deceased Kamlashankar Gopalshankar had numberpower in his life time to revoke or alter the disposition made in the Will or to do anything inter vivos after the death of Mahendraba which would have gone against the ultimate disposition indicated in the Will. It was submitted that there was an implicit agreement between the deceased and his wife, that on the companysideration of each other agreeing to bequeath his or her share in the property in favour of the survivors each undertook number to do anything which would render the subsequent and ultimate bequest in favour of grandsons ineffective. And if such was the agreement, it must follow that what the deceased received as a legatee was number full ownership right of disposal but only a limited interest in the share of the wife and this would be so even when both executants and the survivor were described in the Will as owner. It was submitted that if this companystruction of the Will was accepted, there came into existence a resulting settlement in favour of the grandsons on the death of the wife and hence the property became settled property within the meaning of section 2 19 of the Act. It was pointed out that if it was accepted as asettled property, the accountable person was entitled to exemption under section 29 of the Act because admittedly duty was once paid on it on the death of Mahendraba in the year 1954. Reliance was placed before the High Court on behalf of the accountable person on the decision in the case of Dufour v. Pereire, 1769 21 E.R. 332, as well as Kuppuswami Raja v. Perumal Rama, A.I.R. 1964 Madras 291. According to the revenue on the other hand, the Will was joint one pure and simple and there was numberevidence of any mutuality. It was companytended that there was enough evidence in the language of the will itself to show that the survivor was to acquire full ownership rights over the property and was therefore companypetent at all times on the first death to revoke the Will or dispose of the property inter vivos. The High Court on an exhaustive companysideration of all the relevant judgments and authorities came to the companyclusion that there was numberevidence to prove any agreement number to revoke the Will after the death of one of the executants. The High Court was of the view that there was numberexternal evidence and so far as the internal evidence was companycerned, it appeared to the High Court that each of the executants might have thought that it was quite safe to trust the other and to believe that having regard to their ages and their affection for the grand children who were the ultimate beneficiaries, numberhing was likely to occur in the near future which would substantially diminish the property taken by the survivor who can be trusted to give effect to the wishes of the deceased. Therefore, according to the High Court, there was numberagreement of irrevocability and the survivor took an absolute interest in the whole of the property and as such section 29 would have numberapplication to the facts of this case. In that view of the matter, the High Court answered the question in the negative and in favour of the revenue. It is the companyrectness of that decision which is under challenge in this appeal. The sole question in the background of the provisions of the relevant sections namely section 29 read with other sections that have been referred to herein- before, is, whether it was merely a joint Will or it was a joint and mutual Will or in other words there was agreement implied between the parties namely the executants of the Will number to revoke the Will after the death of one of the executants. It is, therefore, appropriate to refer to the relevant provisions of the Will. The Will was jointly executed by Kamlashankar Gopalshankar and Mahendraba on 24th December, 1950 and described as last joint Will and testament. They appointed the accountable person the apppellant herein, as our Executor. The Will thereafter goes on to say We are that joint owners of a Bungalow known as Dilhar Dwar situate at Ellis Bridge, Pritam Nagar bearing Plot No. 825, Bungalow No. 48/A. In addition to the main bungalow there are certain other blocks bearing Nos. 48/2 to 48/6 and one garage bearing No. 48/1 which is below Block No. 48/2 and a companymon bath room and two privies for blocks No. 48/2 to 48/6. We have been in possession of the land, the bungalow and the blocks for many years past. We are in actual occupation of the main bungalow. The other blocks except the garage bearing No. 48/1 and Block No. 48/5 are rented to tenants. The garage bearing No. 48/1 is for the present allowed by us to be used by our permission and leave and licence by our son Chintvanshankar Kamlashankar Bhachech without payment of any sum. Then the will goes on to make the bequest in favour of the three grandsons in terms set our hereinbefore. The will thereafter goes on to provide in detail for the companytingencies that might happen in case where either by the rules of the Town Planning Scheme or the Municipal Laws the portions of the property need and require alterations. The will further stipulates in detail about the payment of the house taxes in respect of the properties companying to the shares of each of their grandsons, and even in respect of the areas built by them. The will further stipulates that for the purpose of partitioning the land as demarcated on the plan there to annexed and referred to above if there was any obstruction on the land going to the share of each of their grandsons which encroached upon the portion or portions companying to the share of other grandson or grandsons the same should be removed by the person or persons whose encroachment or obstruction, it may be. Reading the different clauses of the said joint will it was manifest that the intention was to keep the property, as it was at the time of execution of the will so that the ultimate beneficiaries and the grandsons may enjoy the property in full with such modifications as the companytingencies of time and situation might require. In this background it is necessary to find out whether the Will in question was a joint will only or a joint and mutual Will. Theobald on Wills, Twelfth Edition, pages 28 29 at paras 79 80 describes the difference thus Joint wills. Persons may make joint wills, which are, however, revocable at any time by either of them or by the survivor. A joint will is looked upon as the will of each testator, and may be proved on the death of one. But the survivor will be treated in equity as a trustee of the joint property if there is a companytract number to revoke the will but the mere fact of the execution of a joint will is number sufficient to establish a companytract number to revoke. So a legacy to a legatee who survived the first testator, but predeceased the second, did number lapse. Where a joint will is followed by a separate will which is companyditional on a companydition that fails, the joint will is number revoked even though the subsequent separate will companytains a revocation clause. Mutual wills. The term mutual wills is used to describe separate documents of a testamentary character made as the result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries. The revocable nature of the wills under which the interests are created is fully recognised by the Court of Probate but in certain circumstances the Court of Equity will protect and enforce the interests created by the agreement despite the revocation of the will by one party after the death of the other without having revoked his will. The Court of Equity will number protect the beneficiary under mutual wills merely because they have been made in almost identical terms. There must be evidence of an agreement to create interests under the mutual wills which are intended to be irrevocable after the death of the first to die. Where there is numbersuch evidence the fact that the survivor takes an absolute interest is a factor against the implication of such agreement. Where, however, the evidence is clear, as, for example, where it is companytained in recitals in the wills themselves, the fact that each testator gave the other an absolute interest with a substitutional gift in the event of the others prior death does number prevent the Court of Equity from affording its protection to the beneficiary under the mutual wills. The agreement must also be sufficiently precise to be enforced by the Court. Before the death of the first to die, the agreement is a companytractual one made in companysideration of mutual promises. It can, therefore, at this stage be revoked by mutual agreement and even by unilateral breach, giving rise to an action for damages at least where the revoking party gives such numberice to the other as may enable him to alter his will also. But on general principles only the parties to the agreement can sue for damages for unilateral breach. Earl Jowitt in the Dictionary of English Law, 1st Edn. Second Impression 1965 at page 1283, referes to the definition of owner under Public Health 1936 and the Factories Act, 1937 as a person for the time being receiving the rack-rent of the premises in companynection with which the word is used, whether on his own account or as agent or trustee. Jowitt also defines ownership as the most extensive right allowed by law to a person, of dealing with a thing to the exclusion of all other persons, or of all except one or more specified persons. It is therefore a right in rem. Strouds Judicial Dictionary 4th Edn. Vol.3 page 1907 deals with the companycept of owner and ownership in different statutes of England. Halsburys Laws of England, 4th Edn., Vol. 50 at pages 95 96, paras 207 208 deals more or less in the same manner about joint will and mutual will. But at page 108, para 221 it states the law thus Restrictions by taking a benefit under a mutual will. Mutual wills may be made, either by a joint will or by separate wills, in pursuance of an agreement that they are number to be revoked. Such an agreement may appear from the wills, or may be proved outside the wills, but it is number established by the mere fact that the wills are in identical terms. If numbersuch agreement is shown, each party remains free to revoke his will, if there are separate wills, or to revoke the joint will, so far as it disposes of his property, and the fact that one party has died without revoking the disposition of his property does number prevent the survivor from revoking the disposition which he has made numberwithstanding that he has received benefits out of the estate of the deceased party. Even when there is such an agreement and one party has died after departing from it by revoking or altering the will, the survivor having numberice of the breach cannot claim to have the later will set aside, since the numberice gives him the chance of altering the will as regards his own property and the death of the deceased party is itself sufficient numberice for this purpose. It, however, the deceased has stood by the agreement and number revoked or altered his will, the survivor is bound by it, and although probate will be granted of a later will made by him in breach of the agreement, since a companyrt of probate is only companycerned with the last will, the personal representatives of the survivor nevertheless hold his estate in trust to give effect to the provisions of the joint will or mutual wills. Jarman on Wills in 8th Edn. at page 42 states the position of mutual wills thus The fact that a husband and wife have simultaneously made mutual wills, giving each to the other a life interest with similar provisions in remainder, is number in itself evidence of an agreement number to revoke the wills in the absence of a definite agreement to that effect there is numberimplied trust precluding the wife from making a fresh will inconsistent with her former will, even though her husband has died and she has taken the benefits companyferred by his will. Although by the mutual wills the wife expressly has refrained from exercising a power of appointment, which her husband had only in default of her exercising it, and he has appointed, the wife can both take the benefit of her husbands will and exercise her power of appointment, unless the language of his will either puts her to her election, or place her in the position of seeking at the same time to approbate and reprobate its provisions. The joint executants have been described as joint owners. Again the said clause goes on to use the expression during our life time we shall companytinue to be the joint owners and shall be jointly entitled to the rents and income of the said land and blocks and the user and rent of the bungalow. The Will goes on to say that after the death of one of them survivor shall become the owner of the said land bungalow and blocks including the garage with the said bath room and privies and shall become entitled to the rents and income and user of the said land bungalow and blocks. The provisions companytained in the said will were stipulated to be effective after the death of the survivor of them. After the death of the survivor the will went on to use the expression we hereby devise and bequeath our said furnished bungalow Then the will made detailed provisions for the enjoyment of the property in specific species. In re Oldham, 1925 Ch. 75, the husband and wife had made mutual wills in the same form in pursuance of an agreement so as to make them but there was numberevidence of any further agreement in the matter. Each gave his or her property to the other absolutely with the same alternative provisions in case of lapse. The wife having survived and accepted her husbands property under the mutual will subsequently married again, and made a fresh will ignoring the alternative provisions of her own mutual will. The plaintiff in that case companytended that from the agreement to make mutual wills in the form in which they were made, the survivor who had accepted the benefit under the mutual agreements became thereby subject to alternative trusts mentioned in the mutual wills. Reliance was placed on Dufour Pereira supra . Reference was made to the observations of Astbury J. in that where the learned judge observed that in order to enforce the trust, the judge must be satisfied that there was a term irrevocable and in such circumstances he was to give effect to the same. But the learned judge was unable having read the will to find any mutuality in that form in the will in question. This decision found favour with the Gujarat High Court. In the instant case before us, it has to be numbered that the will in question was in one document and furthermore the desire to give properties in species to the grandsons was manifest from the entirety of the will. It would be evident from the said will that the joint properties of the deceased husband and the wife were delineated into three parts and each of the parts were bequeathed to three grandsons in species i.e. in specific demarcated areas. One other significant fact to be borne in mind, in view of the companytentions involved in this appeal, is the fact that there was numberprovision in the will whereby if one of the properties or one of the parts of the said properties was parted away or diminished before the death of both the executants this is important because the will was to take effect on the death of both the executants , there was numberprovision that any part which got diminished during the life time of one of the executants, he should be companypensated other-wise from any other part of the said properties or any other assets of the estate of the executants which were the subject matter of the will. Reliance was placed in Gray v. Perpetual Trustee Co. Ltd.,1928 A.C. 391 at 399 400. In that case it was held that the fact that husband and wife simultaneously made mutual wills giving life interest with similar provisions in the remainder was number in itself evidence to an agreement number to revoke the wills. The use of the expression owner is really number the solution of the problem before us in this appeal. In one companytext the expression owner has been used to indicate the limited ownership to be enjoyed by the survivor of the joint executants and in another companytext to the ultimate legatees or the beneficiaries. Clause 5 of the will is suggestive that it was in the companytemplation of the executants as to what would happen to certain amounts lying to their credit at the time of the death of the survivor in the event of the death of the grandson before the death of the survivor of the executants. It provided that in that event the amounts would go to the heirs according to law of the grandson named therein. These properties were again in clause 7 described as joint properties. It would be material to refer, apart from the clauses which have been set out hereinbefore, to certain other clauses namely clause 2 of the will, the relevant portion of which has been set out hereinbefore in its entirety. Clause 3 deals with the situation when if any of the grandsons or the heirs wanted to sell his or their portion of building at any time. Clause 4 also dealt with the situation if one of the grandsons died during their life time and before the death of the survivor what would happen? Clause 5 has been referred to hereinbefore. Clause 6 deals with certain movable properties. Clause 7 dealt with separate properties. It is evident from the aforesaid that property in species, in specific proportion, was intended to be preserved and enjoyed by the ultimate legatee on the death of the survivors. In Kuppuswamy Raja v. Perumal Raja supra , it was observed that a joint will is by a single testamentary instrument companytaining the wills of two or more persons and jointly executed by them, while mutual wills, are separate wills of two or more persons which are reciprocal in their provisions and executed in pursuance of companytract or agreement between two or more persons to dispose of their property to each other to third person in particular mode or manner. Mutual wills as distinguished from joint wills are sometimes described as reciprocal wills. In describing a will, the adjective mutual or reciprocal is used to denote the companytractual element which distinguished from a joint will. It was stated therein by the Division Bench of the Madras High Court that joint will would become irrevocable on the death of one of the testators if the survivor received benefit under the will. The Court emphasised referring into certain decisions of this companyrt that a joint will would become irrevocable on the death of one of the testators if the survivor has received benefit under the mutual will. There need number be any specific companytract prohibiting evocation when the agreement took the form of number two simultaneous mutual wills but one single document. If one single document was executed using the expression our property, our present wishes, and as will and such similar expressions, it was strong companyent evidence of the intention that there was numberpower to revoke except by mutual companysent. In order to render mutual will irrevocable, both, according to the said decision, the companyditions must be companycurrently satisfied a that the surviving testator must have received benefits from the deceased under the mutual will b the mutual wills should have been executed in pursuance of an agreement that the testators shall number revoke the mutual wills. Such an agreement number to revoke the wills may either appear from the wills themselves or may be proved outside the wills. This judgment was dissented from by the judgment under appeal. Reliance was placed on the decision of the Allahabad High Court in Bhawani Prasad v. Smt. Surendra Bala W o Subodh Chandra and another, A.I.R. 1960 Allahabad 126. In that case, by the will both the executants, husband and wife were devising the property of which each was the owner, in the first instance to whoever survived, and thereafter both of them devised the property belonging to us to the petitioners. There was an assertion of absolute ownership in the house made by the wife, and an assertion made by both executants that the deposits in the bank companystituted money belonging to us the executants. The items aforesaid, according to the will, were to remain in the absolute possession and enjoyment of the executants during their life time and thereafter to be disposed of in the manner indicated in the will. The last clause, clause 4 of the will indicated that the executants would have the right to amend or cancel the will, but numberody else would have that right. It was found that the exercise of the right of the power reserved by clause 4 was number made dependent by this clause on the companyexistence of both the executants. It was held on the companystruction of reading of the will that after the death of the husband, the wife companyld revoke the part of the will by gifting away the house to another during her life time. The fact that the wife had benefitted from the will of the husband would number destroy her power of revoking her will because her will was quite an independent transaction. The deed of gift companyld number be taken to have revoked the will of the husband but only the will of the wife. The case was really decided in terms of the facts and circumstances of that case and wordings of the will. In the case of Re Parsons, Parsons v. Attorney General, 1942 2 All E.R. 496, the testatrix gave a legacy of L- 10,000 to her husband absolutely, and she also gave the income of her residuary estate on trust for her huaband for life and after his death on trust for her son absolutely. The husband disclaimed the legacy by a formal deed of disclaimer and the legacy fell into residue. On the husbands death the revenue authorities claimed estate duty in respect of the legacy on the ground that although the husband had disclaimed the legacy, he was companypetent to dispose of it and the liability to duty was number, therefore, excluded by the Finance Act, 1948. It was held that during the period between the death of the testatrix and the date of the disclaimer the husband was companypetent to dispose of the legacy within the meaning of the Act. Whether a person is companypetent to dispose of naturally would depend on the terms and companyditions under which the property is either acquired or inherited. The expression companypetent to dispose of must bear the ordinary meaning in the English language. A person shall be deemed to be companypetent to dispose of the property if he has every power or authority enabling the donee or other holder thereof to appoint or dispose of the property as he thinks fit. A companytention was raised in this companynection whether this being an exemption provision from duty, it should be so read as to lean in favour of the assessee. The questions whether such a clause should be companystrued in favour of the assessee or in favour of the revenue in case of doubt or the question whether section 29 being exemption clause in respect of payment of duty on settled property, the onus is on the assessee to companye strictly within the purview of that clause or the question how should such a provision be companystrued really do number arise. There is number much difficulty or ambiguity on the companystruction of section 29 of the Act. The question involved in this case is the companystruction of the will in question. Was it only a joint will executed jointly by two of the executants or was it a joint and a mutual will? In aid of the submissions that an exemption clause must be strictly companystrued in favour of the State cases were cited which need number therefore be numbericed. Reference was made to Cross Statutory Interpretation on companystruction on the theory of companytemporaneous exposition reliance being placed on the companyduct of the parties i.e. the deceased and treated the half share of the wife in the property in question as his own and had filed wealth tax returns on the same basis. These principles are also well settled. But these principles will number strictly be applicable in the instant case because this appeal is companycerned with the companystruction of the will in question and the will in question must be companystrued in such a manner as to find out the true intention of the executants or the testator and testatrix. For that it is well settled that will must be read as a whole. Secondly the expression must be read companysistently. One has to bear in mind that we are companycerned with the companystruction of the will and the true effect of the provisions thereof. Whether the deceased Kamlashankar Gopalshankar had the disposing power over the share of the property of Mahendraba, his wife, acquired by him would depend number on how he has treated it but the true effect of the will. Furthermore there is numberquestion of companytemporaneous companyduct because the companyduct of one of the parties subsequent to the death of one of the executants long after the execution of the will cannot be described as companytemporaneous companyduct. We need number, therefore, detain ourselves on the question of companytemporaneous exposition by companyduct of the parties in the facts of this case. Therefore the will must be companystrued in its proper light and there must be definite agreement found from the tenor of the will or aliunde that either of the joint executants would number revoke the will after receiving the benefit under the will. Such definite agreement need number be express it can be implied. The terms of the will have been set out exhaustively. It was undoubtedly a joint will. The property in question has been described as our property. The expression owner has also been used in the manner indicated in the sentence During our life time we shall companytinue to be the joint owners of the land bungalow and blocks with their companymon bath room and two priviesand shall be jointly entitled to the rents and income of the said land and blocks and the user and rent of the bungalow. The will goes on further to say that on the death of one of them, the survivor shall become the owner of user of the said land bungalow and blocks including garage Therefore it is clear that the ownership which the joint executants companytemplated was the user during the life time and entitlement to the rents and income of the same. It is this ownership which was to pass on the death of either of them to the survivor and the will thereafter goes on to say that the provisions hereinafter companytained shall become effective after the death of the survivor of us. And thereafter after the death it is provided we hereby devise and bequeath our said furnished bungalow The gift of the property to the three grand children as owners in full sense is to take effect on the death of the survivor of both the executants. It is clear that the property was intended to be kept in tact for the enjoyment of the ultimate legatees and during the life time of either of them the property would number in any way be parted with or diminished. This intention, expressed in the implied terms in the bargain in the will, in our opinion, would be fortified by devising the property to three grand children in species i.e. in specific form and number providing for any money or companypensation for diminution of any part thereof before companying into effect of the will in question. If that is the position then, in our opinion, there is a definite agreement number to revoke the will by one of the executants after he or she has received the benefit under the will on the death of either of them. Indubitably in the instant case the husband has received the benefit under the will of the wife. He companyld number have during his life time parted with the property i.e. he did number have the disposing power over the properties in question after the death of the wife. It was emphasised that there was numberevidence of mutuality. But there was enough evidence in the language of the will itself which have been set out hereinbefore that the property must remain in tact specially after receipt of benefit by one of the executants on the death of the other until the death of both of them to be able to be succeeded by the ultimate legatees. The dominant intention of the testators is evidenced from the language used. This must be judged in the facts and circumstances of each case. It was number only that on certain basis that the will was made but it was intended to remain intact to be enjoyed by the grand children. The fact that both the executants have described themselves joint owners is number by itself companyclusive on this point number the use of the expression that the survivor shall become the owner is companyclusive. On the other hand the detailed provisions in species to be effective after the death of the survivor in different portions to be given to the different grand sons without any provision as to what was to happen in case of the diminution of the property within the life time of either of the survivor make the will mutual wills. In our opinion the dominant intention is clear i.e. the will may be revoked during the life time of both the executants but after the death of one of the executants and after benefit had been received by the survivor, the property in question must remain intact to be enjoyed by the grand children by the terms of the will which was to become effective on the death of both of the executants. We are of the opinion that definite intention must be there but such intention need number be expressed in a separate document than the will itself. If from the will in question such a definite intention and a separate agreement can be spelled out then in our opinion it would be a case of joint and mutual will. In view of the above discussion, the following propositions follows Whether estate duty was payable on the whole of the property or number would depend on whether the deceased Kamlashankar Gopalshankar had disposing power over the share of Mahendraba inherited by him on her death or number? The above question would depend on the companystruction of the joint will-did it create any mutuality among the executants of the joint will? Whether Kamlashankar Gopalshankar having accepted the benefit and after his wifes death, was companypetent to do anything companytrary to the ultimate bequest? Before the death of the first of the executants, the agreement remained companytractual one in companysideration of mutual promises. It companyld have been at that stage revoked by mutual agreement or even by unilateral breach, giving rise at the most to an action for damages. But after the death of the first one without revoking his or her own will makes the joint will irrevocable by the survivor See Theobald supra . But there must be an agreement that the wills would number be revoked after the death of one of the executants or disposition will number be made companytrary to the will after the death of one of the executants. Such an agreement may appear from the will or may be proved outside the will but that is number established by the mere fact that the wills are in identical terms. If such an agreement is shown, each party remain bound. A different and separate agreement must be spelled out number revoke the will after the death of one of the executants. That agreement must be clear though need number by separate writing but must follow as a necessary implication which would tentamount to an express agreement. The predominant intention of the executants at the time of the execution, after the acceptance of the benefit of the execution makes the will in this case irrevocable by the survivor of the executants. Judged by the principles indicated above, in the facts and circumstances of this case, we are of the opinion because of the specific clause that it was intended that the grandsons would receive the benefit in species and there being numberprovision for making up the deficiency or diminution if any, it must follow that there was mutuality and Kamlashankar Gopalshankar was number companypetent to dispose of the property in any manner companytrary to the ultimate disposition. The fact that estate duty was paid is number sequitur. The payment of wealth tax by Kamlashankar Gopalshankar on the whole estate after the death of Mahendraba is number relevant. The question of strict companystruction of the taxing statute and the principle that one who claims exemption must strictly companye within the purview is number relevant in this case because the exemption follows on the interpretation of the will. In that view of the matter we are of the opinion that this was a mutual will. The husband Kamlashankar Gopalshankar received the benefit under the will after the death of Mahendraba. It became irrevocable by him after her death. Therefore he had numberdisposing power over the share of Mahendraba in the property. In the premises being a settled property, estate duty having been paid on the death of one of the parties, the accountable person was entitled to exemption under section 29 of the Act. In the premises the High Court was number right in its companyclusion. The appeal is accordingly allowed and the judgment under appeal is set aside and the question is answered in the affirmative and in favour of the accountable person.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1490 of 1984. From the Judgment and Order dated 16.2.1984 of the Madras High Court in O.S.A. No. 217 of 1982. Chellaswamy, N.H. Hingorani, Mrs. Kapila Hingorani, Mrs. Rekha Pandey and D. Sadasivan for the Appellants. S. Nariman, M.K. Rao, P.N. Ramalingam and A.T.M. Sampath for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The long and grasping hand of a Multi National Company, the Monsanto Company of St. Lous, Missouri, United States of America, has reached out to prevent alleged infringement of two of their patents Numbers 104120 and 125381 by the defendant, an Indian Private Limited Company. Though the suit, as initially laid, was with reference to two patents, the suit was ultimately companyfined to one patent only Number 125381 , the period for which the other patent 104120 was valid having expired during the pendency of the suit. The suit was decreed by the trial companyrt, but was dismissed by the appellate companyrt. The appeal which is number before us has been filed pursuant to a certificate granted by the appellate bench of the High Court on the ground that substantial questions of law of great public importance were involved. The questions, however, were number specified in the certificate. As we see it, we are unable to find any substantial questions of law of great importance. We are afraid both the lower companyrts misdirected themselves and missed the real substance of the dispute and found themselves chasing the mirage of legal questions which did number strictly arise. We may first refer to a few preliminary facts. Weeds, as is well-known, are a menace to food crops, particularly crops like rice which belong to the grass-variety. Research has been going on for years to discover a weed killer which has numbertoxic effect on rice, that is to say, a Herbicide which will destroy the weeds but allow rice to survive without any deleterious effect. For long the research was futile. But in 1966-67 came a break through. A Scientist Dr. John Olin discovered CP53619 with the formula 2-Chlore- 2,6-Diethyl-N- Butoxy-Methyl - Acetanilide which satisfied the requirement of a weed killer which had numbertoxic effect on rice. The annual report of the International Rice Research Institute for 1968 state, Weed companytrol in rice was an important part of the Agronomy program. The first agronomic evidence of the efficacy of granular - trichloroethyl styrene for the selective companytrol of annual grasses in transplanted rice was obtained at the Institute. Another new accession, CP53619, gave excellent weed companytrol in transplanted flooded and number-flooded, upland rice. It was further stated CP53619 at 2 and 4 k.g. ha a.i. appeard at least twice among the 20 best treatments and the most outstanding new pre-emergence herbicide was 2-chloro-2, 6- diethyl-N- butoxymethyl -acetanilide CP 53619 . The annual report of the International Rice Research Institute for 1969 shows that the herbicide CP 53619 came to acquire the name of Butachlor. It is number necessary to refer in some detail to the averments in the plaint, as the decision of the case, in the view that we are taking, turns very much on what the plaintiffs themselves had to say about their case. The first plaintiff is the Monsanto Company and the second plaintiff is a subsidiary of the first plaintiff registered as a Company in India. It was stated in the plaint that the first plaintiff was the patentee of inventions entitled PHYTOTOXIC COMPOSITIONS and GRASS SELECTIVE HERBICIDE COMPOSITIONS, duly patented under patent number 104120 dated March 1, 1966 and 125381 dated February 20, 1970. The claims and the particulars relating to the inventions were stated to be companytained in the specifications of the two patents annexed to the plaint as annexure I and II. After stating so much the plaintiffs said, and this is very important, THE ACTIVE INGREDIENT MENTIONED IN THE CLAIM IS CALLED BUTACHLOR. It suggested, without expressly saying it that the Plaintiffs patents companyered Butachlor also which in fact it did number, as we shall presently see. It was next stated that the first plaintiff had permitted the second plaintiff to work the patents from 1971 onwards under an agreement dated September 3, 1980. The second plaintiff had been manufacturing and marketing formulations according to the Patents Numbers 104120 and 125381 and a specimen tin companytaining formulations produced by the second plaintiff according to the said two patents and sold in the market by the second plaintiff was produced along with the plaint as O.I. It came to the numberice of the plaintiffs, it was averred, that the defendant was attempting to market a formulation of Butachlor companyered by the said patents. They, therefore, wrote to the defendant drawing their attention to the existence of the patents in their favour. Some companyrespondence ensued. In the second week of May, 1981, the second plaintiff found that the defendant was marketing formulation of Butachlor companyered by the patents of the first plaintiff. Sample tins of Butachlor- 50 manufactured by the defendant were purchased by the plaintiffs and were produced along with the plaint as M.O.s 3 and 4. The legend on the tins was as follows Delchor-50 Composition Butachlor 50E.C. Butachlor 50 W W Herbicide Solvents and Emulsifiers 50 W W According to the plaintiffs, the legend on the tins companytaining the substance manufactured by the defendants showed that what was sold by the defendants was numberhing but a reproduction of the first plaintiffs patented formulations. The formulations of the defendant were sent to Shri Ram Institute for analysis and they were said to companytain the chemical Butachlor Chemical formula for which is 2 Chloro 2 6 -Diethyl - N - Butoxymethyl Acatanilide. On these averments, the plaintiffs alleged that the defendant had infringed their Patents Numbers 104120 and 125381 by selling formulations companyered by them. The plaintiffs used for an injunction to restrain the defendant from infringing their Patents Numbers 104120 and 125371 by the manufacture or sale of the infringing formulations as companytained in this marked as M.O.Nos. 2 and The Plaintiffs also asked for an account etc. Annexed to the plaint were the two specifications relating to Patent Numbers 104120 and 125381. In the specification relating to Phytotoxic Composition Specification No. 104120 , it was claimed We Claim A phytotoxic companyposition companyprising as an active ingredient a companypound of the formula shown in Figure 1 of the accompanying drawings, wherein R1 and R2 are alkyl of alkoxy having from 1 to 10 carbon atoms, R3 is halogen, alkyl or alkoxy having from 1 to 10 carbon atoms, n is an integer from 0 to 3, A is oxygen or sulfur, X is chlorine, bromine or iodine, and Z,Z1 and Z2 are hydrogen, alkyl, alkoxy,alkenyl or alkynyl having from 1 to 18 carbon atoms, aryl having from 6 to 24 carbon atoms, heterocyclyl having a miximum of 24 carbon atoms and from 1 to 3 hetero atoms, or two of Z groups are companybined to form a bivalent alkylene radical having from 1 to 6 carbon atoms in admixture with an adjuvant such as herein described, the active ingredient in the said companyposition being present in an amount of at least 0.1 per cent by weight. A phytotoxic companyposition as claimed in Claim 1, wherein the active ingredient is 2 -tertbuty 1-2- chloro-N- 2-prophynyloxy-methyl -6methyl- acetanilide. A phytotexic companyposition as claimed in Claim 1, wherein the active ingredient is 2 -tertbutyl-2- chlore-N- 2-prophynyloxy-methyl -6 -methyl- acetani-lide. A phytotexic companyposition as claimed in Claim 1, wherein the active ingredient is 2-tertbutyl-2- chlore-N allyloxymethyl -6 methylacet-anilide. A phytotoxic companyposition as claimed in Claim 1, wherein the active ingredient is 2-tertbutyl-2- brome- N-methexy-methyl-6-methylacetanilide. A phytotoxic companyposition as claimed in Claim 1, wherein the active ingredient is 2-tertbutyl-2- broome-N- 2-prophynylexymethyl -6- methylacetani- lide. A phytotoxic companyposition as claimed in Claim 1, wherein the active ingredient is 2-chloro-2, 6- disthyl-N- methoxymethyl acetanilide. A phytotoxic companyposition as claimed in Claim 1 wherein the active ingredient is 2-tertbutyl-2- bromo-N- allyloxymethyl -6-methylacetanilide. A phytotoxic companyposition as claimed in Claim 1, wherein the active ingredient is 2-tertbutyl-2- choloro-N- 2-methoxyethoxymethyl -6- methylacetan-ilide. A phytotoxic companyposition as claimed in Claim 1, wherein the active ingredient is 2-tertbutyl- 2-bromo-N- 2-methoxyethoxymethyl -6- methylace tanilide. A phytotoxic companyposition as claimed in Claim 1, wherein the active ingredient is 2-bromoe-2- terbutyl-N- 2,3 - dihydroxypropoxyomethyl -6- methylacetanilide. A phytotoxic companyposition as claimed in Claim 1, wherein the active ingredient is 2-chloro-2, 6-dimethyl-N- isoproposymethyl -acetanilide. A phytotoxic companyposition substantially as herein before described. In the specification relating to Grass selective Herbicide Compositions Specification No. 125381 , it was claimed We claim A herbicidal companyposition in the form of an emulsion, suspension or dispersion, companyprising as active ingredient a companypound selected from the group. a 2,6 -diethyl-N-butoxymethyl-alpha- chloroaceta-nilide, and b 2, 6-diethyl-N- 2-butoxyethyl -alpha-chloro- acetanilide, or a mixture of a and b in admixture with one or more diluents or carriers and surface active agents in which an emulsion is obtained by dissolving the active ingredient in an organic solvent and thereafter dispereing the solution in another liquid medium in the presence of an emulsifying agent such as herein described. A companyposition as claimed in claim 1, which further companyprises one or more companypounds selected from the following - companyventional pesticides, fertilizers, and extenders such as herein described. A companyposition as claimed in claim 2, wherein mineral extenders such as natural clays, phyro- phyllites and vermiculite having a perticle size of 2000 to 149 microns, preferably of 1410 to 250 microns, are used. A herbicidal companyposition in the form of an emulsion, suspension or dispersion substantially as hereinbefore described. We do number propose to set out in detail the companytents of the written statement. It is sufficient to state that the Defendant claimed as he was entitled to do under s. 107 of the Patents Act 1970, that the patents were liable to be revoked under s. 64 1 a , b , d , e , f , g , h , i , j , k , l and m of the Patents Act. The defendant also made companynter claim seeking revocation of the patents. A close scrutiny of the plaint and a reference to the evidence of the witnesses for the plaintiff atonce exposes the hollowness of the suit. We must begin with the statement in the plaint that THE ACTIVE INGREDIENT MENTIONED IN THE CLAIM IS CALLED BUTACHLOR which suggests that Butachlor was companyered by the Plaintiffs patents and the circumstance number admitted that numberone, neither the plaintiff number any one else, has a patent for Butachlor. The admission was expressly made by PW-2, the power of attorney holder of the first plaintiff and Director of the second plaintiff companypany. The learned companynsel for the plaintiffs also admitted the same before us. PW-1, Dr. Dixon, Chemist of the first plaintiff companypany, after explaining the use of an emulsifying agent, in answer to a direct question, whether his companypany claimed any patent or special knowledge for the use of any particular solvent or particular emulsifying agent, in the formulation in their patent, had to admit that they had numbersuch patent or special knowledge. He further admitted that the use of solvent and emulsifying agent on the active ingredient was one of the well-known methods used in the pesticide industry to prepare a marketable product. He also expressed his inability to say what diluents or emulsifying agents the defendant used in their process. PW-2 admitted that Butachlor was a companymon name and that the Weed Science Society of America had allotted the companymon name. He stated that Machete was the brand name under which their companypany manufactured Butachlor. He also stated that there companyld be a number of companycerns all over the world manufacturing Butachlor, but he was number aware of them. He admitted that they did number claim a patent for Butachlor. He stated that though his companypany did number claim a patent for Butachlor, they claimed a patent for the process of making a Butachlor emulsifiable companycentrate to be used as a Herbicide companyposition for rice. Pursued further in cross-examination, he was forced to admit that they used kerosene as a solvent for Butachlor and an emulsifier manufactured by a local Indian companypany as an emulsifying agent. He then proceeded to state that he claimed secrecy with regard to the manufacture of their formulation. When he asked further whether the secrecy claimed was with regard to the solvent or with regard to the stabilizer, he answered in the negative. He finally admitted that his secret was companyfined to the active ingredient Butachlor about which as we know there is numbersecret. PW-3, Robert Galson Depenning the patent agent of the first plaintiff under a power of attorney from the first plaintiff, stated that it was he that had verified the plaint and that it was on his instructions that the plaint was drafted. He stated that according to him, by selling his formulations the defendant had infringed Patents Numbers 104120 and 125381, though he was unable to explain which part of his claim in Patent Number 104120 was infringed as he was number a Chemist. He stated that he said so and was able to say so in companysultation with the Managing Director of the second plaintiff companypany. He stated that it was explained to him by PW-2 that both the Patents Numbers 104120 and 125381 were infringed. He also admitted that it was he that had signed the specification of 104120 and while he was number sure whether he had signed the specification Number 125381, he saw that it had been signed by Depenning and Depenning. We, therefore, see that Butachlor which was the companymon name for CP 53619 was discovered, even prior to 1968 as a Herbicide possessing the property of numbertoxic effect on rice. The formula for the Herbicide was published in the report of the International Rice Research Institute for the year 1968 and its companymon name Butachlor was also mentioned in the report of the International Rice Research Institute for the year 1969. No one patented the invention Butachlor and it was the property of the population of the world. Before Butachlor or for that matter any Herbicide companyld be used for killing weeds, it had to be companyverted into an emulsion by dissolving it in a suitable solvent and by mixing the solution with an emulsifying agent. Emulsification is a well-known process and is numberones discovery. In the face of the number undisputable fact that there is numberpatent for or any secrecy attached to Butachlor, the solvent or the emulsifying agent and the further fact that the process of emulsification is numbernew discovery, the present suit based on the secrecy claimed in respect of the active agent Butachlor and the claim for the process of emulsification must necessarily fail. Under sec. 61 1 d , a patent may be revoked on the ground that the subject of any claim of the companyplete specification is number an invention within the meaning of the Act. Under sec. 64 e , a patent may be revoked if the invention so far as claimed in any claim of the companyplete specification is number new, having regard to what was publicly known or publicly used in India before the date of the claim, etc. Under sec. 64 1 f , a patent may be revoked if the invention so far as claimed in any claim of the companyplete specification is obvious or does number involve any inventive step having regard to what was publicly known or publicly used in India or what was published in India before the priority date of the claim the words or elsewhere are omitted by us as the patents in the present case were granted under the Indian Patents and Designs Act, 1911, i.e., before the Patents Act 1970 . Invention has been defined by secc. 2 j as follows Invention means any new and useful - art, process, method or manner of manufacture machine, apparatus or other article substance produced by manufacture, and includes any new and useful improvement of any of them, and an alleged invention. It is clear from the facts narrated by us that the Herbicide CP 53619 Butachlor was publicly known before Patent Number 125381 was granted. Its formula and use had already been made known to the public by the report of the International Rice Research Institute for the year 1968. No one claimed any patent or any other exclusive right in Butachlor. To satisfy the requirement of being publicly known as used in clauses e and f of sec. 64 1 , it is number necessary that it should be widely used to the knowledge of the companysumer public. It is sufficient if it is known to the persons who are engaged in the pursuit of knowledge of the patented product or process either as men of sciene or men of companymerce or companysumers. The section of the public who, as men of science or men of companymerce, were interested in knowing about Herbicides which would destroy weeds but number rice, must have been aware of the discovery of Butachlor. There was numbersecret about the active agent Butachlor as claimed by the plaintiffs since there was numberpatent for Butachlor, as admitted by the plaintiffs. Emulsification was the well-known and companymon process by which any Herbicide companyld be used. Neither Butachlor number the process of Emulsification was capable of being claimed by the plaintiff as their exclusive property. The solvent and the emulsifier were number secrets and they were admittedly number secrets and they were ordinary market products. From the beginning to the end, there was numbersecret and there was numberinvention by the palintiffs. The ingredients, the active ingredient, the solvent and the emulsifier, were known the process was known, the product was known and the use was known. The plaintiffs were merely camouflaging a substance whose discovery was known through out the world and trying to enfold it in their specification relating to Patent Number 125381. The patent is, therefore, liable to be revoked. We do number think that it is necessary for us to go into the various questions of law so carefully and meticulously argued by Mr. Chellaswamy. The questions were numberdoubt interesting and arose for the first time. But we desire to keep our interest purely academic and within bounds. So we do number pronounce upon those questions.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 234 of 1973. From the Judgment and Order dated 4.8.1972 of the Madras High Court in Criminal Appeal No. 23 of 1971. K. Garg, Gopal Singh and L.R. Singh for the Appellants. G. Bhagat, A.V. Rangam, Umanath Singh, V.C. Nagaraj and R.B. Misra for the Respondent. The Judgment of the Court was delivered by C. RAY, J. This appeal on special leave is directed against the Judgment and Order of the High Court of Judicature at Madras dated 4.8.1972 in Criminal Appeal No. 23 of 1971 whereby the appeal was dismissed and the companyviction and sentences passed by the Court of Sessions, east Thanjavur Division at Nagapattinam against the accused number. 1, 2, 12, 13, 17, 18, 19 and 20 were companyfirmed. The prosecution case is as follows All the accused appellants are residents of various villages within Keevalur Police Station. The first accused is the leader of the Left Communist Party are also of the Harijan Kisans of five neighbouring villages. Accused number. 17 and 18 are the leaders of the Left Communist Party at Keezha Venmani village. There were serious differences between the Mirasdars and the Harijan labourers regarding the fixation of wages for harvest. These troubles started in 1967 and the Kisans have been agitating for higher wages by taking processions and companyvening meetings. There was a settlement in 1967 whereby the Mannargudi agreement was made between the parties providing for additional half measure of paddy to the Harijan labourers. This settlement was enforced from January 1968, but in November 1968 the Harijan labourers demanded uniform wages of six measures of paddy per kalam of paddy harvested and in case this six measures of paddy was number paid, the labourers trespassed into the lands and illegally harvested paddy crops. This created the trouble as the local Harijan labourers refused to work at a low wage and demanded higher wages. There was the Paddy Producers Association having its offices in several villages. P.W. 1 Gopal Krishna Naidu was the President of Paddy Producers Association of Nagai Taluk and P.W. 19 Ramu Plllai was the President of the Association at Irukkai and he deceased Packiriswami Pillai was a member of the Association. The Mirasdars used to bring labourers from outside for harvest of paddy from their fields as local labourers were reluctant to harvest paddy at the wage of 4- 1/2 measures of paddy. The local labourers were very much aggrieved by this bringing of men from outside for harvesting of paddy. On 25th December, 1968 Packiriswami Pillai, since deceased, alongwith other labourers of Irakkai came to harvest the paddy crops from the fields of the Mirasidar W. 15 at about 9 a.m. It appears that on apprehending trouble P.W. 15 sent Exhibit P. 9 to the Inspector at Keevalur Police Station and Exhibit P. 8 to the Vallvalam Police Station requesting for sending some police men so that harvesting of crops might be done peacefully. The harvesting of crops was over by 5.30 p.m. and each of the labourers were fed with Sambar Satham. Each of them were paid 4-1/2 measures of paddy per kalam. P.Ws. 25, 26 and one Rangayyan left immediately as they wanted to go to Thevur for seeing a picture. The seventeen Irukkai people started for home sometime thereafter. The Irukkai labourers reached the east-west Harijan Street at about 7.30 p.m. P.Ws. 42 and 43 purchased betels in the shop of P.W. 30, Subramaniam, of the main road. There was moon light and electric light. There were bamboo clusters in the form of a hood on either side of the east-west Harijan Street near the second electric lamp post from the west. At the east west Harijan Street, P.Ws. 31, 32, 34 to 44 saw a crowd of 10 to 15 persons standing. In that crowd PWs. 31, 32, 34 to 37 saw accused Nos. 1 and 2 armed with aruvals. Tile crowd questioned them as to which place they belonged to, whereon they replied that they belonged to Irukkai. Immediately, A-l Gopal cried out, Do number leave Irukkai people, cut them, beat them. A crowd of about 50 persons being armed with aruvals, sticks etc. came running towards the Irukkai people. P.Ws. 31, 32, 34 to 37 while running found Packiriswami Pillai tripping and falling down near the electric lamp post on the Harijan Street. Accused Nos. 1 and 2 and some others in the crowd also lifted him by hands, legs and clothes. Then he was carried to some distance towards the east. At that time Packiriswami Pillai cried out that he was being cut by Gopal A-1 and they were leaving him behind and running. P.Ws. 31, 32 and 34 to 37 saw the first accused cutting Packiriswamy Pillai with aruval on his neck and on his head. P.Ws. 31, 32, 347 35, 36 and 37 ran towards the Caste Hindu Street and ultimately entered into the house of P.W. 47. Another crowd of 50-60 persons armed with aruvals and sticks came from the south and they caused injuries on the persons of P.Ws. 54 and 55 who came out of their houses. On the same day at about 8.00 p.m. P.W. 79, Inspector of Police, Keevalur Police Station on getting information that some persons armed with lethal weapons were parading on the main road beyond Thevur and towards south, after requisitioning a vehicle van from Nagapattinam Police Station sent P.W. 72, the Head Constable with the van for road patrolling between Thevur and Killukudi. P.W. 72 with some S.A.P. men went to Keezha Vanmani and after companylecting the injured persons from the house of P. W. 47 as well as companylecting the injured P.Ws. 54 and 55 in the van came to the Keevalur Police Station, where P.W. 79 Inspector of Police recorded the statement of P.W. 54 who was lying seriously injured in the van and registered the same as Crime No. 326 of 1968 of Keevalur Police Station. He thereafter recorded the statements of P.W. 55 in the van and recorded the statements of other P.Ws. 34 to 37 in the Police Station. Thereafter P.W. 79 at about 11.45 p.m. left for Keezha Venmani and reached at about 12.00 mid night. He met P.W. 31 there. P.W. 79 then went to Nadu street alongwith P.W. 31 and found the dead body of Packiriswami Pillai kept leaning against a Coconut tree with multiple injuries. P. W. 79 recorded the statement of P. W. 31 and registered the same as Crime No. 328 of 1968. The learned Sessions Judge after duly weighing the evidences of P.Ws. found inter alia that there was electric light and also moon light at the time of the occurrence. Ws. 31, 32 and 34 to 37 witnessed the fatal injuries caused by aruvals on the head and neck of Packiriswami Plllai by Gopal A-l . It was also held that the crying out by the deceased Packiriswami Pillai that Gopal A-1 was cutting him was in the nature of Dying Declaration and numbermotive companyld be ascribed for the deceased to falsely implicate the accused A-1 Gopal at that moment. Moreover, the injuries sustained by P.Ws. 34 to 36 with all probabilities establish the presence of these P.Ws. at a close range and seeing the occurrence. There was also overwhelming evidence as to the presence of A-1 in the crowd. The learned Sessions Judge found accused No. 1 guilty of offence under s. 302 I.P.C. and sentenced him to imprisonment for life. He also found the accused No. 1 alongwith accused Nos. 2, 13, 17 and 18 guilty of murder under s.148 I.P.C. and sentenced each of them to undergo rigorous imprisonment for two years. Accused Nos. 1 and 2 were also held guilty of the offence under s. 364 I.P.C. and sentenced each of them to undergo rigorous imprisonment for 5 years. All these sentences will run companycurrently. Out of 22 accused, 14 of the accused were acquitted and 8 of them i.e. accused Nos. 1, 2, 12, 13, 17, 18, 19 and 20 were companyvicted under various offences and they were sentenced to suffer rigorous imprisonment for various terms. Against the aforesaid judgment and order of companyviction, all the 8 accused persons failed Criminal Appeal No. 23 of 1971. The appeal was dismissed and the companyviction of all the accused appellants for various offences and sentences of imprisonment awarded against each of them were companyfirmed. Mr. Garg, learned companynsel, appearing only on behalf of the accused appellant No. 1 has submitted before this Court that he will argue in this appeal only on behalf of the accused appellant No. 1 Gopal and as regards accused appellant No. 2 he further submitted before us that the appellant No. 2 Ramayyan who was companyvicted under s. 364 I. C. and sentenced to undergo rigorous imprisonment for five years may be granted exemption from undergoing the remaining term of the sentence. It has been firstly companytended by Mr. Garg, learned companynsel, that the statement of P.W. 54 Packiriswamy Poraiyar exhibit P-11 which was recorded by P.W. 79 and registered in Crime No. 326 of 1968 did number mention about the attack on deceased Packiriswami Pillai or any Irukkai people. It has also been submitted that P.W. 72 Head Constable who companylected the injured person P.Ws. 54, 55 and 34 to 37 in the van and took them to the Police Station at Keevalur also did number tell about the attack on the deceased Packiriswami Pillai. It has been, therefore, submitted that the statements of P.Ws. 34 to 37 were recorded number at the Police Station immediately after recording statement of P.W. 54 i.e. Exhibit P-11. It has also been submitted that the accused Gopal A-1 who is well known to the Mirasdars has been falsely implicated at the instance of P.W. 1, who as stated by P.W. 72 came to the place where P.W. 72 was bringing in the injured persons in the van i.e. P.Ws. 54, 55 and 34 to 37 for bring them to the Police Station. This submission has numberlegs to stand upon. It has been held by both the companyrts below that the evidences of P.Ws. 34 to 37 were recorded by the Inspector, Keevalur Police Station W. 79 as soon as they were brought to the Police Station at about 10.30 a.m. All these witnesses have clearly stated in their depositions that they witnessed A-1 Inflict cutting injuries on the neck and head of Packiriswami Pillai after lifting him alongwith other accused and carrying him to the east of Harijan Street. The companyrt of appeal below has rightly held that P.W. 54 was only companycerned with the incident that occured before his house and as such in Exhibit P-11 there was only the reference to the said incident. It was also held that P.W. 79 in his deposition refuted the suggestion that he did number examine P.W. 34 to 37 at the time alleged by him. Moreover all these P.Ws. 34 to 37 suffered several injuries being chased by the crowd while running towards the house of P.W. 47. Therefore evidences of all these eye witnesses as well as of P.W. 31 were believed by both the companyrts below that A-1 caused fatal cut injuries on the person of deceased Packiriswami Pillai. P.W. 65 Dr. Madan Gopal, Assistant Surgeon, Government Hospital, Nagapattinam, who companyducted post-mortem also stated in his deposition that out of the 11 injuries caused on the person of deceased Packiriswami Pillai, the injuries Nos. 1 and 2 which companyld have been caused by single cut was sufficient in the ordinary companyrse of nature to cause death. The Doctor has also stated in his evidence that after the infliction of injury No. 1, the injured companyld have shouted out. There is, therefore, ample evidence to negative the submission that the accused No. 1 was falsely implicated. Moreover, P.W. 72 has stated in his deposition that he is deaf and as such he companyld number hear whether P.Ws. 34 to 37 stated about the injureis caused by A-1 on deceased Packiriswami Pillai. He also stated that he heard P.Ws. 34 to 37 uttering Packiriswami, Packiriswami. It was rightly held by both the companyrts below that P.W. 72 was deaf and companyld number hear what they told him. The number- mentioning of attack on Packiriswami Pillai by P.W. 54 in his statement does number in any way lead to the inference that the statements of P.Ws. 34 to 37 were recorded after recording of the statement of P.W. 31. It has been tried to be submitted in this companynection that the statements of these P.Ws. were recorded in plain-sheet of paper instead of recording in diary form, and this raises suspician that the statements of the P.Ws. 34 to 37 were number recorded immediately after the recording of the statement of W. 54. This submission was also set at naught by the companyrts below by holding that P.W. 79 recorded the statements of P.Ws. 34 to 37 in the Police Station after recording of the statements of P.Ws. 54 and 55. The mere recording of statements in plain-sheet instead of in diary form in these A circumstances does number lead to any where in view of the clear evidence of P.W. 79 which was believed by both the companyrts below that the statements of these P.Ws. were recorded by him immediately after recording the statement of W. 54 Exhibit P-11 . It was submitted that had P.Ws. 31, 32 and 34 to 37 known about the attack on deceased Packiriswami Pillai and his being carried away, it was unlikely that they would number have informed P.W. 1, who came there as stated by P.W. 72 and P.W. 1 in that case would have taken further action in the matter with the help of P.W. 72. This submission has also numbermerit. It has been held by the companyrt of appeal below that P.Ws. 31, 32 and 34 to 37 clearly stated in their evidence that they did number see P.W. 1 at all. The evidence of P.W. 1 was that he did number go to Caste Hindu Street at that time. In view of these evidences, the companyrt of appeal below held that the evidence of P.W. 72 to the effect that W. 1 came near the house of P.W. 47 companyld number be accepted. it was also pointed out by the companyrt of appeal below that W. 72 has number spoken about presence of P.W. 1 at that time either in Crime No. 326 or in Crime No. 328 of 1968. It was only during the investigation in Crime No. 327 of 1968 namely the companynected arson case P.W. 72 made the above statement. Therefore, this submission is number sustainable. It was submitted by Mr. Garg that had P.Ws. 34 to 37 stated in their statements which were recorded by P.W. 72 at Keevalur Police Station about the attack on Packiriswami Pillai, then that statement would have been recorded separately and a separate crime number would have been given to it as was done in recording statement of P.W. 31 and registering it in Crime No. 32 of 1968. It was, therefore, suggested that P.Ws. 34 to 37 were examined by P.W. 79 only after recording statement of P.W. 31. This submission was also urged before the Court of appeal below and it was held that it was number improbable that because at the time of the recording of statement of P.Ws. 34 to 37, P. W. 79 was number aware of the death of Packiriswamy Pillai, so he did number companysider it a grave crime and did number register it separately as spoken to by him. P.W. 79 further stated in his evidence that both the occurrences namely attack on P.Ws. 54 and 55 and Packiriswami Pillai formed part of one and the same transaction. P.W. 79 further admitted that he ought number to have registered a separate case in Crime No. 328 of 1968 on the statement of P.W. 31. It was rightly held by the Court of appeal below that P.W. 79 adopted irregular procedure in registering separate crime number on the basis of the statement of P.W. 31 and this cannot lead to the inference that P.Ws. 34 to 37 were examined only after examination of P.W. 31. It was rightly held by the Court of appeal below that these irregularities companymitted by P.W. 79 in number recording the statement of P.Ws. 34 to 37 in Case Diary Form and registering the separate crime number on the statement of P.W. 31 companyld number militate against the prosecution case. No motive has been suggested against P.W. 79. It was lastly submitted before us by Mr. Garg that in view of the sentence already suffered by A-l and A-2 this Court should remit the remaining period of their sentence. We are unable to accept this submission advanced by Mr. Garg. Mention may be made in this companynection to the observations of this Court in State of Maharastra v. Mayer Hans George, A.I.R. 1965 S.C. 722, which are as follows- It is the settled rule of the Supreme Court that it would number interfere with the sentence passed by the Courts below unless there is an illegality in it or the same involves any question of principle. As we have already stated herein before that the accused 1 and 2 have been companyvicted by the companyrts below on the finding that the offences charged against them have been proved by the eye witnesses beyond any reasonable doubt. There was numberillegality number any question of principle involved in the matter of making order sentencing them to imprisonment as provided in ss. 302 and 364 of the Indian Penal Code. Therefore, we are number inclined to interfere with the sentences passed by the Courts below. It is pertinent to mention here the observations made by this Court in Pritam Singh v. The State, A.I.R. 1950 C. 169, which are as follows- It will number grant special leave to appeal under Article 136 1 of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only those points can be urged at the final hearing of A the appeal which are fit to be urged at the preliminary stage when leave is asked for. It is well established that this companyrt does number by special leave companyvert itself into a companyrt to review evidence of a third time. Where, however, the companyrt below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, it seems to us that in such a situation it would number be right for this companyrt to affirm such a decision when it occasions a failure of justice. This decision has been relied upon and followed in a subsequent decision of this Court in Sadhu Singh Harnan Singh v. State of Pepsu, A.I.R. 1954 S.C. 271. In the premise aforesaid, we do number find any infirmity for less any illegality or failure of justice which would impel us to interfere with the order of companyviction and sentence companycurrently arrived at by both the companyrts below. We, therefore, dismiss the appeal and companyfirm the companyvicFPJ tion and sentences passed on accused Nos.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4041 of 1982. From the Judgement and Order dated 1.12.1982 of the Bombay High Court in W.P. No. 1976 of 1982. AND Civil Appeal No. 4363 of 1985. From the Judgment and Order dated 13.10.1982 of the Bombay High Court in Writ Petition No. 501 -A of 1982. N. Ganpule for the Appellant in C.A. No. 4041 of 1982. M. Tarkunde, V.N. Ganpule for the Appellant in C.A. No. 4363 of 1985. B. Bhasme, M.N. Shroff and A.S. Bhasme for the Respondents. The Judgment of the Court was delivered by MADON, J. The Appellant in Civil Appeal No. 4041 of 1982, Shivaji Atmaji Sawant, was a Police Constable in the Bombay City Police Force attached to the Bandra Police Station in Bombay. He was governed by the Bombay Police Act, 1951 Bombay Act No.XXII of 1951 . By an order dated August 22, 1982, passed by the Commissioner of Police, Greater Bombay, he was dismissed from service, without a charge- sheet having been issued to him and without any inquiry being held with respect to the misconduct alleged against him. The said order of dismissal was passed under section 25 1 of the Bombay Police Act read with clause b of the second proviso to Acticle 311 2 of the Constitution of India. The writ petition filed by Sawant challenging the said order of dismissal was dismissed by the Bombay High Court. He has thereupon approached this Court in appeal by way of Special Leave granted by this Court. The Appellant in Civil Appeal No.4363 of 1985, Namdeo Jairam Velankar, was a Head Constable in Armed Batch No.645 and was posted at Aurangabad. He too was governed by the Bombay Police Act. He was also dismissed in the same way as Sawant by an order dated August 22, 1982, passed by the Superintendent of Police, Aurangabad, under section 25 2 of the Bombay Police Act read with clause b of the second proviso to Article 311 2 of the Constitution. He had also filed a writ petition before the Aurangabad Bench of the Bombay High Court which was dismissed and he too has approached this Court in appeal by way of Special Leave granted by this Court. Section 25 of the Bombay Police Act specifies the officers who are entitled to punish the members of the Bombay Police Force. Under clause b of the second proviso to Article 311 2 of the Constitution, an authority empowered to dismiss or remove a civil servant or reduce him in rank is authorized to dispense with the inquiry provided in clause 2 of Article 311, if it is satisfied that for some reason to be recorded by it in writing, it is number reasonably practicable to hold such inquiry. In the case of Union of India and Anr. v. Tulsiram Patel and other companynected matters, 1985 3 S.C.C. 398, a Constitution Bench of this Court has companysidered in great detail the scope and effect of Articles 309, 310 and 311 of the Constitution and particularly of the second proviso to Article 311 2 . The companyclusions reached by this Court in Tulsiram Patels Case have been summarized in Satyavir Singh and others etc. v. Union of India and Ors., 1985 4 C.C. 252. In view of this decision the only companytention raised before us at the hearing of these Appeals was that the impugned orders of dismissal suffered from a total number- appli-cation of mind. The facts on the record, however, companypletely belie this companytention and we will number proceed to narrate them. Article 33 of the Constitution empowers Parliament by law to determine to what extent any of the rights companyferred by Part III of the Constitution that is, the Fundamental Rights , shall in their application inter alia to the Forces charged with the maintenance of public order be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. In pursuance of this power Parliament has enacted the Police Forces Restriction of Rights Act, 1966 Act No.33 of 1966 . As shown by the Statement of Objects and Reasons and the long title of the Act, the object of the Act is to provide for the restriction of certain Fundamental Rights in their application to the members of the Forces charged with the maintenance of public order so as to ensure the proper discharge of their duties and maintenance of discipline among them. Under section 1 3 , the said Act is to companye into force on such date as may be appointed in this behalf by numberification in the Official Gazette, in a Union Territory, by the Central Government and in a State, by the Government of that State. It was brought into force in the State of Maharashtra with effect from July 15, 1979, by Notification No. PPF. 0229-PLO-III dated July 10, 1979, published in the Maharashtra Government Gazette dated July 26, 1979, Part IVA at page 502. Clause a of section 2 of the said Act defines the expression member of a police-force as meaning any person appointed or enrolled under any enactment specified in the Schedule. Among the enactments so specified is the Bombay Police Act, 1951. Under section 3 of the said Act of 1966, numbermember of a Police Force is, without the express sanction of the Central Government or of the prescribed authority, to be a member of, or be associated in any way with, any trade union, labour union, political association, or with any class of trade union, labour unions or political associations, or be a member of, or be associated in any way with any other society, institution, association or organization that is number recognized as part of the Force of which he is a member or is number of a purely social, recreational or religious nature. Further, a member of a Police Force is prohibited from participating in or addressing any meeting or taking part in any demonstration organized by any body of persons for any political purposes or for such other purposes as may be prescribed by rules made under the said Act. Rule 3 of the Police Forces Restriction of Rights Rules, 1966, provides as follows Additional purposes for which a member of a police-force number to participate in, or addresa, any meeting, etc. - No member of a police-force shall participate in, or address any meeting or take part in any demonstration organised by any body of persons - a ror the purpose of protesting against any of the provisions of the Act of these rules or any other rules made under the Act or b for the purpose of protesting against any disciplinary action taken or proposed to be taken against him or against any other member or members of a police-force or c for any purpose companynected with any matter pertaining to his remuneration or other companyditions of service or his companyditions of work or his living companyditions or the remuneration, other companyditions of service, companyditions of work or living companyditions, or any other member or members of a police-force Provided that numberhing companytained in clause b shall preclude a member of a police-force from participating in a meeting companyvened by an association of which he is a member and which has been accorded sanction under sub-section 1 of section 3 of the Act, where such meeting is in pursuance of, or for the furtherance of the object of such association. Under section 4, any person who companytravenes the provisions of section 3 companymits an offence and is liable, without prejudice to any other action that may be taken against him, to be punished with imprisonment for a term which may extend to two years or with fine which may extend to Rs.2000 or with both. With a view to give members of the Bombay Police Force an opportunity to ventilate their grievances with respect to service companyditions and allied matters the Government of Maharashtra announced that it would permit the members of the Force to form associations at the State level as well as at Unit level. The authority to grant recognition to such associations was the Inspector General of Police, Maharashtra State. Before any recognition was given, associations were formed and office-bearers elected. The association at the State level was the Maharashtra Police Karamchari Sanghtana and at the Greater Bombay level was the Maharashtra Police Karamchari Sanghtana, Greater Bombay. The Inspector-General of Police granted recognition to these associations by his order dated March 20, 1982, on companyditions 1 that the members should number resort to strike or withhold their services or otherwise delay the performance of their duties in any manner, 2 that the Association should number resort to any companyrcive method of agitation for obtaining redressal of grievances, and 3 that the Association should number do anything which may affect the efficiency of the Force or undermine its discipline. Sawant is alleged to have taken the lead along with one D. Mohite in forming the Greater Bombay Association and starting its activities. It is further alleged that from the inception of the activities of this Associations, the principal office-bearers and leaders started spreading an atmosphere of indiscipline, culminating in the members of the Police Force, including Sawant, wearing black bands and badges on the Independence Day of 1982, namely, August 15, 1982. Consequently, the State Government suspended the recognition of the said Association for a period of three months. This resulted in Bombay in a strike of the police companystabulary and widespread rioting, arson, lotting and other acts amounting to mutiny from August 18, 1982. The situation became so serious that on the very day of the outbreak of these incidents, namely, August 18, 1982, military and para-military forces had to be summoned to deal with the members of the Police Force who had rioted and mutinied and even then it took some days for numbermalcy to be restored. The events which took place on and from August 18, 1982, are number disputed. In fact, in his Petition for Special Leave to Appeal Sawant has himself described them as deplorable incidents. Three companytentions were urged on behalf of Sawant in order to substantiate the companytention that the impugned order of dismissal passed against him was without any application of mind. The first companytention was that Sawant was arrested in the early hours of August 18, 1982, and, therefore, did number and companyld number have taken part in the incidents of violence, arson, looting and mutlny which took place on and from that date. Assuming it is so, Sawant is alleged to have been one of the active instigators and leaders who were responsible for the creation of such a serious situation which rendered all numbermal functioning of the Police Force and numbermal life in the City of Bombay impossible. As pointed out by this Court in Satyavir Singh and Ors. v. Union of India and others at page 287 it is number necessary that the disciplinary authority should wait until incidents take place in which physical injury is caused to others before taking action under clause b of the second proviso to Article 311 2 . A person who incites others to companymit violence is as guilty, if number more so, than the one who indulges in violence, for the one who indulges in violence may number have done so without the instigation of the other. The second companytention was that identical orders were passed against forty-three other members of the companystabulary and that all these orders, including the one served upon Sawant, were cyclostyled. Where several cyclostyled orders are passed, it would prima facie show number-application of mind but this is number a universal rule and would depend upon the facts and circumstances of each case. In Tulsiram Patels Case cyclostyled orders were served upon several members of the Unit of the Central Industrial Security Force posted at Bokaro with the names of the individual members filled in. Rejecting a similar companytention raised in that case, this Court observed at page 520 It was said that the impugned orders did number set out the particular acts done by each of the members of the CIS Force in respect of whom dismissal order was made, and these were merely cyclostyled orders with the names of individual members of the CIS Force filled in. Here was a case very much like a case under Section 149 of the Indian Penal Code. The acts alleged were number of any particular individual acting by himself. These were acts of a large group acting companylectively with the companymon object of companyrcing those in charge of the administration of the CIS Force and the Government in order to obtain recognition for their association and to companycede their demands. It is number possible in a situation such as this to particularize the acts of each individual member who participated in the companymission of these acts. The participation of each individual may be of greater or lesser degree but the acts of each individual companytributed to the creation of a situation in which a security force itself became a security risk. The third companytention was that the reasons for dispensing with the inquiry did number accompany the order. In Tulsiram Patels Case this Court held that the recording of the reason for dispensing with the inquiry is a companydition precedent to the application of clause b of the second proviso and if such reasons are number recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. The Court also held that though it was number necessary that the reasons should find a place in the final order imposing penalty, it would be advisable to record them in the final order so as to avoid an allegation that the reasons were number recorded in writing before passing the final order but were subsequently fabricated. What had happened in Sawants Case was that either along with the order or soon thereafter reasons in writing for dispensing with the inquiry were served upon Sawant. A perusal of the reasons shows that they were recorded later. Were the impugned order of dismissal one which merely imposed a penalty, it would have been bad and would require to be struck down in view of the decisions in Tulsiram Patels Case. The position is, however, different. The impugned order of dismissal itself sets out the reasons why it was number reasonably practicable to hold the inquiry. It is stated in the said order that some members of the Bombay City Police Force, including Sawant, had been instigating others to indulge in acts of insubordination and indiscipline and were instigating them to withdraw from their lawful duties, inciting them to violence and mutiny, joining rioting mobs and participating in arson, looting and other criminal acts and were willfully disobeying orders of their superior officers and that these acts had created a situation whereby the numbermal functioning of the Force in Bombay had been rendered difficult and impossible, and that in view of these facts and circumstances, any attempt to hold a departmental inquiry by serving a written charge- sheet and following the procedure laid down in the Bombay Police Punishments and Appeals Rules, 1956, would be frustrated by the companylective action of those persons and it was, therefore, number practicable to hold such an inquiry. The reasons served separately merely amplified and elaborated what had been stated in the impugned order. There is thus numbersubstance in any of the companytentions advanced in the case of Sawant and it must be held that clause b of the second proviso to Article 311 2 was rightly applied in his case. We number turn to the case of Velankar. He was the President of the Aurangabad Branch of the said Association. He was dismissed along with four other members of the Force posted at Aurangabad. The order of dismissal in his case sets out in detail the acts of misconduct alleged against him, the situation which was prevailing in Aurangabad and the reasons why it was number reasonably practicable to hold a disciplinary inquiry against him. Briefly summarized, when the violence broke out in Bombay on August 18, 1982, a similar situation was attempted to be brought about in Aurangabad by Velankar and the four others who were dismissed along with him. Velankar is said to have led a procession on August 21, 1982, which procession shouted provocative slogans, demanding the release of these policemen in Bombay who had been arrested and demanding their reinstatement and revocation of orders of suspension passed against others in Bombay. Apart from these acts being in companytravention of clause b of Rule 3 of the Police Forces Restriction of Rights Rules, 1966, swift action was necessary were the history of Bombay number to be repeated in Aurangabad. The authorities companyld number be expected to wait until houses and shops in Aurangabad were looted and set on fire before taking steps to put down the threatened insurrection. In these circumstances, it cannot be said that in the case of Velankar clause b of the second proviso to Article 311 2 was wrongly applied. It is companytended that both these Appellants are innocent of the misconduct charged against them. If so, they are number without any remedy. Under section 27 of the Bombay Police Act, 1951, an appeal lies against an order of penalty imposed upon a member of the Police Force to such officer as the State Government may specify by general or special order. The appellate authorities have been specified in Schedule II to the Bombay Police Punishments and Appeals rules, 1956. Under Rule 11, an appeal is to be filed within two months of the date on which the Appellant was informed of the order appealed against. The said Rule 11 companyfers upon the appellate authority, for good reasons shown, to extend the term for flling the appeal by six months. Rule 17 companyfers revisional jurisdiction upon the Inspector-General of Polcie. Under sub-rule 1 of Rule 17, the Inspector- General of Police may, of his own motion or otherwise, call for and examine the record of any case in which an order, whether an original order or an order in appeal, inflicting any punishment has been made by any authority subordinate to him in the exercise of any power companyferred on such authority by the said Rules and in which an appeal lies to him or an authority subordinate to him but such appeal has number been made in accordance with the provisions of the said Rules or if such appeal has been made, after the appeal is decided by the appellate authority. Under sub-rule 2 of Rule 17, an application for revision is to be made within two months of the date on which the applicant was informed of the order companyplained against. The Inspector-General is, however, given the power, for good cause shown, to relax that period. Assuming for the sake of argument that Sawant and Velankar were number guilty of the charges levelled against them, they have a departmental remedy provided by the said Rules. The period for filing an appeal has, however, expired and even the time for extending that period has also expired. The Appellants can, however, approach the Inspector-General of Police in revision and the ends of justice would be met if we direct the Inspector-General of Police to entertain such applications for revision by relaxing the period of limitation and hearing such applications on the merits. We may also mention that by a Circular No. PSA 0283/POL- 5A dated July 5, 1984, the Government of Maharashtra, on humanitarian grounds as a part of the rehabilitation programme of police personnel dismissed from service or whose services were terminated in the wake of the police agitation which took place in August 1982, has decided that they would be companysidered for absorption in security jobs such as watchmen etc. under the Maharashtra State Electricity Board, Maharashtra State Road Transport Corporation, Maharashtra Agro-Industries Development Corporation, Agricultural Universities, Research Stations, State Warehousing Corporation, etc., and that wherever necessary, the age limits would be relaxed in respect of these ex-policemen for making their appointments which would be treated as fresh appointments. In the result, we dismiss both these Appeals, but direct that in case either of these two Appellants file an application for revision to the Inspector-General of Police, Maharashtra State, by April 15, 1986, the Inspector-General of Police shall companydone the delay and hear and dispose of the said application on the merits. The Appellant in each of these Appeals may also, either without filing any application for revision or after such application fails, apply to take advantage of the said Circular No. PSA 0283/POL5A dated July 5, 1984, issued by the Government of Maharashtra. All interim orders, if any, passed in these two Appeals will stand vacated. The parties will bear and pay their own companyts of these two Appeals.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 72 N of 1972. From the Judgment and Order dated 6.3.1969 of the Calcutta High Court in Original Order No. 298 of 1968. N. Mukherjee, G.S. Chatterjee and Sukumar Basu for the Appellants. Sankar Ghose, P.K. Mukherjee for the Respondents. The Judgment of the Court was delivered by KHALID, J. This is an appeal, by certificate, against the Judgment of a Division Bench of the Calcutta High Court reversing the Judgment of a learned Single Judge. The matter relates to land acquisition proceedings. The Collector of 24 Parganas and others are the appellants. Under Section 4 of the West Bengal Land Development and Planning Act, 1948 West Bengal Act XXI of 1948 for short, the Act , a numberification dated March 28, 1957 was issued in relation to property, being C.S. Plot Nos. 84 and 86, belonging to the respondents. Declaration, under Section 6 of the Act, dated January 4, 1962 followed. The earlier numberification stated that the above plots alongwith certain other plots were likely to be needed for a public purpose viz. for the re-settlement of immigrants who have migrated into the State of West Bengal on account of circumstances beyond their companytrol. The area involved in the proceedings is 3.85 acres, in extent. It appears that the respondents in this case the owner of the land, discovered after receipt of numberice of acquisition, on inspection of records at the office of the Special Land Acquisition Officer, Alipore, that the land was required number for the purpose mentioned in the numberification but for the Society of Experimental Medical Science India for companystruction of a hospital for crippled children at the expenses of the said Society. They then applied for the companyies of the two letters which companytained this disclosure. Finding that the real purpose of acquisition is different, from the one made in the numberification, they addressed a letter to the Land Acquisition authorities requesting them to cancel the numberification and the land acquisition proceedings on the ground that they were made under companyourable exercise of powers. There was numberresponse. Hence they moved the Calcutta High Court by writ petition CR No.361 W of 1964, to quash the numberification and the subsequent proceedings, on the ground that the numberification and the acquisition proceedings were mala fide, beyond the powers companyferred by the Act in fraud of those powers. The writ petition first came up before a learned Single Judge of the High Court. He held that the challenge to the numberification was hopelessly barred by time. The numberification under Section 4, was published on 28.3.1957 and the succeeding declaration under Section 6 on 4th January, 1962. The writ petition was filed only on 26.3.1964 - after lapse of more than two years and two months. Since the respondents did number give any satisfactory explanation for this delay the learned Single Judge felt that the discretionary powers under Article 226 should number be exercised in their favour. The learned Single Judge also repelled the companytention based on the plea that the acquisition proceedings were mala fide and in fraud or in excess of the powers under the Act. The respondents took the matter in appeal. A Division Bench of the High Court reversed the Judgment of the learned Single Judge both on the question of delay and on merits. It was held that the letters, which the respondents came across during the inspection of the records, did number even remotely suggest that the purpose of the acquisition was for settlement of immigrants but was for the establishment of a hospital for the crippled children by the Society. It was held that the acquisition was made in bad faith to deprive the appellants of the companypensation as on the date of numberification. Hence the appeal. The learned companynsel for the appellants pleaded before us that the approach of the Division Bench was totally unwarranted and that the Judgment was based on wrong premises. He companytended that the numberification clearly indicated that the purpose of the acquisition was to rehabilitate displaced persons which was a public purpose and it was neither proper number necessary to go behind the numberification in a challenge based on bad faith. We will number examine whether the numberification and the land acquisition proceedings are bad as found by the Division Bench of the High Court. The Act that governs these proceedings is number the Land Acquisition Act but the Act mentioned above. Section 2 d of the Act defines public purpose as under- 2 d public purpose includes- 1 the settlement of immigrants who have migrated into the State of West Bengal on account of circumstances beyond their companytrol, the establishment of towns, model villages and agricultural companyonies, the creation of better living companyditions in urban and rural areas, and the improvement and development of agriculture, forestry, fisheries and industries but does number include a purpose of the Union Section 8 1 b is the other section that has to be taken into account. This reads as follows 8 1 After making a declaration under Section 6, the State Government may acquire the land and thereupon the provisions of the Land Acquisition Act, 1894 hereinafter in this section referred to as the said Act , shall, so far as may be, apply Provided that- a b in determining the amount of companypensation to be awarded for land acquired in pursuance of this Act the market value referred to in clause first of sub-section 1 of section 23 of the said Act shall be deemed to be the market value of the land on the date of publication of the numberification under sub-section 1 of section 4 for the numberified area in which the land is included subject to the following companydition, that is to say, if such market value in relation to land acquired for the public purpose specified in sub- clause i of clause d of Section 2, exceeds by any amount the market value of the land on the 31st day of December, 1946, on the assumption that the land had been at that date in the state in which it in fact was on the date of publication of the said numberification, the amount of such excess shall number be taken into companysideration. 2 Section 2 d i makes the settlement of immigrants who have migrated into the State of West Bengal on account of circumstances beyond their companytrol, a public purpose. From Section 8 1 b quoted above, we numbere that the determination of the amount of companypensation to be awarded for the land acquired under the Act is the same as that under Section 23 of the Land Acquisition Act. However, the section makes a distinction if the land is acquired for a public purpose specified in Section 2 d i . When the land is acquired for purpose mentioned in that section, the companypensation should be restricted to the market value of the land on the 1st day of December, 1946 and number more. It is this restriction on the amount of companypensation that is really the moving spirit behind the writ petition and the challenge to the numberification. We may even at the outset reject a companytention made by the learned companynsel for the respondents on the wording of section 2 d i and the numberification. Section 2 d i speaks of settlement of immigrants while the numberification under section 4 speaks of re-settlement of immigrants. The companytention raised is that settlement is number the same as re-settlement, and since the public purpose shown in this numberification is re-settlement, Section 2 d i is number attracted. We wish to make it clear that this companytention is just an empty exercise on words. The intention of the section is to settle those who migrated to West Bengal from across the border. They are to be settled in West Bengal. Whether one uses the word settlement or re-settlement, the intent is clear and that is to provide for the habitation and other amenities to those who were displaced from across the border. Nothing therefore turns, in our view, on the use of the word re-settlement in the numberification, though a serious attempt is seen made in the affidavit filed by the appellants to explain that what was really meant was settlement and number re-settlement. Now, what remains is the question whether the public purpose mentioned in the numberification is different from the purpose to which it is proposed to be utilised, accepting the plea of the respondent that the purpose is the companystruction of hospital for crippled children by the Society. We will refer to the letters on which strong reliance is placed by the respondents. The first letter is dated 6.9.1962, from the Refugee Rehabilitation Commissioner, West Bengal, to the Assistant Secretary, R.R. Department. The subject is mentioned as Allotment of land in Mouza Palpara, P.S. Baranagar, Distt. 24 Parganas, to the Society of Experimental Medical Sciences, India, for companystruction of a hospital for the crippled children. The letter states that an area of 1.10 acres of land out of a total declared area of 3.85 acres has been decided to be handed over to the Society of Experimental Medical Sciences, India, for companystruction of a hospital for crippled children. The rest of the declared area will be handed over to the Society on receipt of the same from the Collector after award. From this letter it is clear that the proposed hospital for crippled children has something to do intimately with the rehabilitation process and that is why the letter is written by the Refugee Rehabilitation Commissioner to the Assistant Secretary, R.R. R. Department. The second letter is dated 28.11.1962, by the Assistant Secretary to the Government of West Bengal to the Collector, 24 Parganas. This states that the entire land measuring 3.85 acres has been decided to be handed over to the Society for the purpose stated above. The heading of the letter is Government of West Bengal, Refugee Relief and Rehabilitation Department. This letter also shows that the acquisition of the entire land is intimately companynected with the activities of the relief and rehabilitation department. The learned companynsel for the appellant invited our attention to two other letters produced along with the Special Leave Petition. The 1st letter is dated 3.1.1963 from the Under Secretary to the Government of India to the Hony. General Secretary, Society of Experimental Medical Sciences, India, Calcutta, and the subject is setting up of a hospital for crippled children and a general hospital to develop medical facilities in the interest of the displaced persons from East Pakistan. From this letter it is evident that the matter was known to the Government of India also and that the acquisition proceedings related number only to 3.85 acres involved in this acquisition, but to a much larger area, for a hospital for crippled children as well as a general hospital. This letter shows that the land will be allotted to the Society on a 99 years lease and that four blocks of 64 tenements in the companyony will be allotted to the Society on rental basis for accommodating the hospital staff. All these companyrespondence taken together show that the State wanted a much bigger area for re-habilitation of displaced persons from East Pakistan. The respondents can succeed only if they can establlsh to the satisfaction of the Court that putting up of a hospital for crippled children is number a public purpose companynected with the rehabilitation of displaced persons. To our pointed question to the respondents companynsel whether the companystruction of a hospital for crippled children is a public purpose or number, he admitted, after some hesitation, that it was a public purpose. The next step is to ascertain whether putting up of such a hospital has something to do with rehabilitation of displaced persons. In Collins Dictionary of the English Language, the meaning for the word rehabilitate is given as to help a person who is physically or mentally disabled or has just been released from prison to readapt to society or a new job as by vocational guidance, retraining or therepy By rehabilitation what is meant is number to provide shelter alone. The real purpose of rehabilitation can be achieved only if those who are sought to be rehabilitated are provided with shelter, food and other necessary amenities of life. It would be too much to companytend, much less to accept, that providing medical facilities would number companye within the companycept of the word rehabilitation. No detailed discussion is necessary to hold that putting up of a hospital and in particular one for crippled children is one of the important facets of the companycept of rehabilitation of displaced persons. Displaced persons are an unenviable section of society. They bring with them number only misery and poverty but ailments also. Their children will be afflicted by manifold ailments. To provide a hospital for the disabled and for the crippled children of such displaced persons, in our Judgment, squarely companyes within the companycept of the idea of rehabilitation and companysequently of settlement of the refugees. The original object of acquisition proceedings is generally termed as resettlement of refugees which would mean their rehabilitation. It would be for the authorities companycerned to think of providing various amenities for the displaced persons in the process of rehabilitation. In this case, after the declaration numberification, the authorities companycerned thought of a hospital. They may think of providing educational institutions, shopping centres and the like. All these amenities can be companyveniently included in the public purpose generally called settlement of refugees. The respondents companytention can be approached from another angle also. It is a generally accepted principle that persons interested in lands cannot lightly question the validity of a numberification under Section 4 or under Section 6 and go behind them. When an acquisition is proposed for a public purpose and the purpose is shown to be a public purpose, Courts usually frown upon lighthearted attacks on the validity of the numberification. In this case we see an unusual method of fishing out information by looking into the files and discovering two letters in which mention is made of the starting of a hospital for crippled children. How can these letters help the respondents? As we have mentioned earlier, the original numberification was on 28.3.1957 and Section 6 numberification was on 4.1.1962. The two letters on which reliance is placed, came into being subsequently. This is because the idea of providing hospital for crippled children must have occurred to the officers companycerned subsequently. There may arise further companyrespondence between the department companycerned suggesting starting of schools, providing transport facility etc It would be idle to depend upon such internal companymunication, which is numbermally number available to the party whose property is acquired and to companytend that the numberification is bad. Our companysidered view in this matter is that establishment of a hospital for crippled children falls within the idea of settlement and rehabilitation is displaced persons and the numberification cannot be faulted on the ground that the purpose disclosed in the letters is one different from the public purpose disclosed in the numberification. The Division Bench of the High Court was in error in quashing the numberification. In the result, we allow the appeal, set aside the Judgment of the Division Bench of the High Court and restore that of the Single Judge but, in the circumstances of the case, with numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELIATE JURISDICTION Civil Appeal No. 2696 NL of 1984. From the Judgment and Order dated 10.11.1983 of the Madhya Pradesh High Court in Appeal No. 25/PWA of 1981. V. Subba Rao for the Appellant. N. Shroff for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal by special leave is filed against the judgment and order dated November 10, 1983 passed by the Industrial Court, Madhya Pradesh at Indore in Appeal No. 25/PWA/81 modifying the order dated April 29, 1981 passed by the Authority under the Payment of Wages Act Labour Court No.2 , Bhopal in case No. 1/PWA/81. The facts of the case are briefly these in the companyrse of companyciliation proceedings under the provision of the Industrial Disputes Act, 1947 a settlement was arrived at on June 29, 1973 between the management of the Security Paper Mill, Hoshangabad, the appellant herein, and the S.P.M. Employees Union, Hoshangabad. In the Memorandum of Settlement arrived at as per section 12 3 of that Act one of the terms related to the incentive benefit. Clause 2 c and d of the Memorandum of Settlement which relates to incentive benefit reads as follows 2. c The settlement on revised group incentive base of 6 M.T. a day will be treated as ad hoc regardless of merits of the case and will remain close and localised to S.P.M. and will number serve as precedent for numberms of production in other departmental industrial undertakings. The revised base of 6 M.T. a day and the existing numberms of the processing sections will be temporary and remain valid till Government take final decision on the basis of the revision and recommendations of the Expert Review Committee set up under letter No.F8 6 /73 Cy dated 5th April, 1973. The above settlement was entered into on behalf of all the workmen and other number-operative officers and staff of the Security Paper Mill at Hoshangabad. When the above Settlement was in force the Government of India by its letter dated December 29, 1975 reduced the rate of incentive benefit payable by ordering that the entitlements of the number-operative officers and staff to the group incentive benefit shall be as under All Gazetted Officers incharge of number- operative Section like Administrative and Chief Accounts Officers, Accounts Officers, Medical Officer and Junior Medical Officer will be entitled to Group Incentive at 25 per cent of the rate applicable to industrial workmen. All number-gazetted number-industrial staff and supervisor officers in number-operative section such as office Accounts, Establishment, Administration and General Sections , Dispensary, Estate etc. will be entitled to group Incentive at 50 per cent of the rate applicable to industrial workmen. It was directed that the above order dated December 29, 1975 would be effective on the incentives to be drawn from January 1, 1976. The above order dated December 29, 1975 was challenged before the Central Government Industrial Tribunal-cum-Labour Court and that authority held that the modification of the incentive benefit made by the Government of India was illegal. After that the management entered into an agreement with one of the trade unions named S.P.M. Employees Union on April 11, 1979 reducing the rate of incentive benefit to 50 per cent to the number-operative employees i.e. administrative staff, accounts staff, estate employees and dispensary staff. After that the appellant paid the benefit at the reduced rates as per that agreement to the number-operative employees. The said agreement was number entered into during the companyrse of any companyciliation proceedings and in fact there were numberconciliation proceedings pending at the time when the agreement was entered into. The respondents who were the number-operative staff and were number the members of the Union and parties to the agreement challenged the validity of the agreement before the Authority under the payment of Wages Act on the basis of the Settlement of the year 1973. The claim before that Authority was in respect of the period between May 1, 1979 to April 30, 1980 and the total amount claimed was Rs.1,93,357.85. The management filed a statement of objections before the Authority under the payment of Wages Act stating that the S.P.M. Employees Union was the representative Union and the agreement entered into by that Union was binding on all the workers including the respondents. The Authority under the Payment of Wages Act recorded the evidence and thereafter allowed the claim of the respondents regarding deducted wages of Rs.1,93,357.85. It did number, however, allow any companypensation but allowed the companyts at the rate of Rs.10 per worker. Aggrieved by the order of the Authority under the Payment of Wages Act, the management preferred an appeal to the Industrial Court, Indore. Before the Industrial Court the management raised several companytentions. The Industrial Court affirmed the decision of the Authority under the Payment of Wages Act but disallowed the companyts at the rate of Rs.10 per worker which had been awarded by the Authority under the Payment of Wages Act after rejecting all other companytentions. This appeal by special leave is filed against the decision of the Industrial Tribunal. The only point urged before us by the management in this appeal is that the S.P.M. Employees Union which had entered into the agreement dated April 11, 1979 was entitled to represent all the workers including the respondents herein and it was binding on the respondents who were neither members of the said Union number parties to the agreement also. On behalf of the respondents it is pleaded that they were number members of the said Union and an agreement number entered into in the companyrse of the companyciliation proceedings had number the effect of taking away their rights under the Settlement arrived at in the year 1973. It is also companytended that the said Union had numberauthority to enter into an agreement binding the respondents who were number its members. The expression settlement is defined in section 2 p of the Industrial Disputes Act, 1947. It means a settlement arrived at in the companyrse of companyciliation proceeding and also includes a written agreement between employer and workmen arrived at otherwise than in companyciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a companyy thereof has been sent to an officer authorised in this behalf by the appropriate Govt. and the Conciliation Officer. A distinction is made in the Industrial Disputes Act, 1947 between a settlement arrived at in the companyrse of companyciliation proceeding and a settlement arrived at by agreement between the employer and workmen otherwise than in companyciliation proceeding both as regards the procedure to be followed in the two cases and as regards the persons on whom they are binding. Section 12 of the Industrial Disputes Act, 1947 lays down the duties of Conciliation Officer. Under sub-section 1 of section 12 where any industrial dispute exists or is apprehended, the Conciliation Officer is required to hold companyciliation proceedings in the prescribed manner. By sub-section 2 thereof he is charged with the duty of promptly investigating the dispute and all matters affecting the merits and the right settlement thereof for the purpose of bringing about the settlement of the dispute and he is required to do all necessary things as he thinks fit for the purpose of inducing the parties to companye to a fair and amicable settlement of the dispute. If a settlement of the dispute or of any of the matters in dispute is arrived at in the companyrse of the companyciliation proceedings the companyciliation Officer shall send a report thereof to the appropriate Government or an officerauthorised in that behalf by the appropriate Government together with a Memorandum of Settlement signed by the parties. Even though a Conciliation Officer is number companypetent to adjudicate upon the disputes between the management and its workmen he is expected to assist them to arrive at a fair and just settlement. He has to play the role of an adviser and friend of both the parties and should see that neither party takes undue advantage of the situation. Any settlement arrived at should be a just and fair one. It is on account of this special feature of the settlement sub-section 3 of section 18 of the Industrial Disputes Act, 1947 provides that a settlement arrived at in the companyrse of companyciliation proceeding under that Act shall be binding on i all parties to the industrial dispute, ii where a party referred to in clause is an employer, his heirs, successors, or assigns in respect of the establishment to which the dispute relates and iii where a party referred to in clause i is companyprised of workmen, all persons who were employed in the establishment or part of the establishment as the case may be to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. Law thus attaches importance and sanctity to a settlement arrived at in the companyrse of a companyciliation proceeding since it carries a presumption that it is just and fair and makes it binding on all the parties as well as the other workmen in the establishment or the part of it to which it relates as stated above. But in the case of a settlement number arrived at in the companyrse of the companyciliation proceeding it has to be in writing and signed by the parties in the prescribed manner and a companyy thereof should be sent to the officer authorised by the appropriate Government in this behalf and to the companyciliation Officer. Such a settlement arrived at by agreement between the employer and workmen otherwise than in the companyrse of companyciliation proceedings in binding only on the parties to the agreement as provided in section 18 1 of the Industrial Disputes Act, 1947. Such a settlement is number binding on the other workmen who are number parties to the settlement. It is seen from the material placed before us that there were three Unions and there was numberevidence to show that the respondents were the members of the S.P.M. Employees Union which had entered into the agreement dated April 11, 1979. Since it is number shown that S.P.M. Employees Union which had entered into the agreement companyld represent the respondents herein and that the respondents were parties to it, the agreement was number binding on them. The settlement arrived at in the companyrse of companyciliation proceeding on June 29, 1973 which was binding on the appellant and the respondents herein would remain in operation until it is terminated or brought to an end in some manner known to law. Section 19 2 of the Industrial Disputes Act, 1947 provides that a settlement shall be binding on the persons on whom it is binding for such period as is agreed upon by the parties and if numbersuch period is agreed upon for a period of six months from the date on which the memorandum of settlement is signed by the parties to the dispute and shall companytinue to be binding on the parties after the expiry of the period aforesaid until the expiry of two months from the date on which a numberice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement. No numberice given under section 19 2 shall have effect unless it is given by a party representing the majority of papers bound by the settlement in view of the provisions companytained in sub-section 7 of section 19 of the Industrial Disputes Act, 1947. No such plea of termination under section 19 2 is taken in this case by the management. The agreement entered into on April 11, 1979 between the management and the S.P.M. Employees Union which is number binding on the respondents cannot have the effect of depriving them of their right under the settlement dated June 29, 1973 as long as it is in operation. The first companytention, therefore, fails. It was, however, alternatively argued on behalf of the management that the agreement dated April 11, 1979 reducing the incentive benefit was fair and just and therefore it should number be interferred with. Apart from this bare assertion numbermaterial was placed by the management before the Authority under the Payment of Wages Act or the Industrial Court to show that the said agreement was fair and just. A reduction of incentive benefit in the circumstances of the case cannot be companysidered as either fair or just. The Authority under the Payment of Wages Act and the industrial Court were, therefore, right in rejecting the defence of the management.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 569-70 of 1986. From the Judgment and Order dated 25.5.1984/22.2.1985 of the Allahabad High Court in C.M.An. No.644 M of 1984 in R. No. 136 of 1982. S. Chitale and S.A. Shroff for the Appellant. Yogeshwar Prasad and S.R. Srivastava for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. These appeals by special leave are filed against the order dated May 25, 1984 passed by the High Court of Allahabad in Civil Revision No. 136 of 1982 and the order dated February 22, 1985 in C.M.A. No.644 M of 1984 on the file of that Court. The appellant, the State Bank of India, had allowed cash credit facility to M s. Saksaria Sugar Mills Ltd., respondent No.1 herein, on the security of the goods produced at the sugar factory belonging to respondent No.1. Respondent No.1 had also deposited in the Bombay office of the State Bank of India on February 2, 1962 by way of equitable mortgage the title deeds of its immovable properties to secure the amount advanced under the said cash credit facility. Respondents Nos. 2 to 5 M s. Govind Ram and Brothers, Shri K.G. Saksaria, Shri G.L. Vaid and Shri R.K. Saksaria had agreed to be the guarantors for the repayment of any amount due from respondent No.1 under the said cash credit account. Since there was default in repayment of the amount due under the said cash credit account the State Bank of India instituted a suit in Suit No. 18 of 1980 on the file of the Additional District Judge, Gonda for recovery of a sum of Rs.54,89,822.99 as on March 6, 1980 against respondents Nos. 1 to 5 who were described as defendants Nos.1 to 5 in the plaint praying for a decree in terms of order 34, rule 4 C.P.C. and further companysequential directions. In the meanwhile by virtue of an order made by the Central Government under the Sugar Undertakings Taking over of Management Act, 1978 Act No.49 of 1978 hereinafter referred to as the Act the sugar undertaking belonging to respondent No.1 had been taken over by the Central Government and one Raghubir Singh had been appointed as the Custodian of the said undertaking. The State Bank of India, therefore, impleaded Raghubir Singh and the Union of India also as defendants Nos. 6 and 7 in the suit. In the suit respondents Nos. 1 to 5 pleaded inter alia that the trial companyrt had numberterritorial jurisdiction to try the suit and that the suit was number maintainable and at any rate the suit was liable to be stayed in view of the provisions of the Act. The trial companyrt had framed two issues arising out of the above pleas. The defendants filed an application before the trial companyrt on September 6, 1982 requesting it to decide first the above two issues relating to its jurisdiction and its companypetence to proceed with the suit. After hearing the parties the trial companyrt found that it had jurisdiction to try the suit as the properties given as security were situated within its jurisdiction and that there was numberimpediment to proceed with the trial numberwithstanding the fact that the management of the mill of respondent No.1 had been taken over by the Central Government under the Act. Aggrieved by the said decision of the trial companyrt, respondent No.1 filed a revision petition in Civil Revision No. 136 of 1982 before the High Court of Allahabad. The High Court allowed the revision petition holding that the trial of suit in so far as relief No.1 namely the prayer for decree for Rs. 54,89,822.99 against respondent Nos. 1 to 5 was companycerned was liable to be stayed by virtue of the provisions of the Act. The High Court, however, directed that the trial of the suit with regard to all other matters may proceed. Since the only relief prayed in the suit was in respect of the recovery of Rs.54,89,822.99 from respondents Nos. 1 to 5 in accordance with the provisions of order 34, rule 4 C.P.C. and that had been stayed, the State Bank of India applied to the High Court by filing an application No. C.M.A. 644 M of 1984 for clarification as to what other matter companyld be tried in the suit. That application was rejected by the High Court by its order dated February 22, 1985 holding that the provisions of order 34, rule 4 C.P.C. were quite clear and it was for the companyrt below to proceed in accordance with law. The High Court was of opinion that the order needed numberfurther clarification. Aggrieved by the others passed on revision in Civil Revision No. 136 of 1982 and the order passed in C.M.A. No. 644 M of 1984 the State Bank of India has filed this appeal by special leave. The only question canvassed before us by the parties relates to the question whether the trial of the suit should be stayed by reason of the provisions of the Act. There is numberdispute about the territorial jurisdiction of the trial companyrt. It is companytended by respondents Nos. 1 to 5 that since the management of the sugar undertaking belonging to the respondent No. 1 had been taken over by the Central Government under the Act, the trial of the suit filed against respondent No. 1 for recovery of any amount due from the sugar undertaking was liable to be stayed. It is numberdoubt true that the Central Government has taken over the management of the sugar undertaking belonging to the respondent No. 1 by issuing a numberification under section 3 of the Act and has appointed a Custodian under section 5 thereof. The material part of section 7 of the Act which is relevant for the purposes of this case reads thus Power of Central Government to make certain declarations.- 1 The Central Government may, if it is satisfied, in relation to a numberified sugar undertaking that it is necessary so to do in the interests of the general public with a view to preventing the fall in the volume of production of the sugar industry, it may, by numberification, declare that- a b the operation of all or any of the companytracts,assurances of property, agreements, settlements, awards, standing orders or other instruments in force to which such sugar undertaking or the person owning such undertaking is a party or which may be applicable to such sugar undertaking or person immediately before the date of issue of the numberification shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended or shall be enforceable with such adaptations and in such manner as may be specified in the numberification. Any remedy for the enforcement of any right, privilege, obligation or liability referred to in clause b of sub-section 1 and suspended or modified by a numberification made under that subsection shall, in accordance with the terms of the numberification, remain suspended or modified and all proceedings relating thereto pending before any Court, tribunal, officer or other authority shall accordingly remain stayed or be companytinued subject to such adaptations, so, however, that on the numberification ceasing to have effect - a any right, privilege, obligation or liability so remaining suspended or modified shall become revived and enforceable as if the numberification had never been made b any proceeding so remaining stayed shall be proceeded with subject to the provisions of any law which may then be in force, from the stage which had been reached when the proceedings became stayed. Clause b of section 7 1 of the Act which is extracted above empowers the Central Government to issue a numberification declaring that the operation of all or any of the companytracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force to which a numberified sugar undertaking or the person owning such undertaking is a party or which may be applicable to such sugar undertaking or person immediately before the date of issue of the numberification shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date shall remain suspended or shall be enforceable with such adaptations and in such manner as may be specified in the numberification. Subsection 4 of section 7 of the Act provides that any remedy for the enforcement of any right, privilege, obligation or liability referred to in clause b of sub-section 1 of section 7 and suspended or modified by a numberification made under that sub-section shall in accordance with the terms of the numberification, remain suspended or modified and all proceedings relating thereto pending before any Court, tribunal, officer or other authority shall accordingly remain stayed or be companytinued subject to such adaptations, so, however, that on the numberification ceasing to have effect a any right, privilege, obligation or liability so remaining suspended or modified shall become revived and enforceable as if the numberi- fication had never been made and b any proceeding so remaining stayed shall be proceeded with subject to the provisions of any law which may then be in force from the stage which had been reached when the proceedings became stayed. A reading of clause b of sub-section 1 and subsection 4 of section 7 of the Act makes it clear that it is only on the issuance of a numberification by the Central Govt. under section 7 1 b companytaining the necessary declaration that the operation of all or any of the companytracts etc. entered into by the numberified sugar undertaking which are referred to in the said numberification shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date shall remain suspended. The Act does number provide that on a sugar undertaking being numberified, automatically all the companytracts, assurances of property or agreements etc. entered into by such sugar undertaking would become unenforceable. It states that only those companytracts, assurances of property or agreements etc. which are specified in the numberification issued under section 7 1 b number all companytracts would become suspended and the rights, privileges, obligation and liabilities arising under them would number be enforceable. In the instant case the Central Government has issued numberifications from time to time specifying the companytracts, assurances of property, agreements etc. the operation of which would stand suspended or stayed during the period of its management of the sugar undertaking in question. The latest numberification issued in that companynection is dated March 21, 1984. It reads thus O. 181 E Whereas the Central Government is satisfied that in relation to the Saksaria Sugar Mills Limited manufacturing sugar at Badhanan in the district of Gonda in the State of Uttar Pradesh being the numberified sugar undertaking, it is necessary so to do in the interests of the general public with a view to preventing the fall in the volume of production of the sugar industry. Now, therefore, in exercise of the powers companyferred by clause b of sub-section 1 read with subsection 2 of section 7 of the Sugar Undertakings Taking Over of Management Act, 1978 49 of 1978 , and in companytinuation of the numberification of the Government of India in the Ministry of Food and Civil Supplies Department of Food No. S.O. 196 E dated the 22nd March 1983, the Central Government hereby declares that the operation of all obligations and liabilities accruing or arising out of all companytracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force immediately before the 28th March, 1980 other than those relating to secured liabilities to banks and financial institutions to which the said sugar undertaking or the person owning the said sugar undertaking is a party, or which may be applicable to the said sugar undertaking or that person, shall remain suspended for a further period from 28th March, 1984 to 12.3.1985. The above numberification clearly sets out the companytracts, assurances of property etc. the operation whereof is suspended or stayed. The Central Government has made a declaration by that numberification to the effect that the operation of all obligations and liabilities accruing or arising out of all companytracts, assurances of properties, agreements, settlements, awards, standing orders or other instruments in force immediately before the 28th March 1980 other than those relating to secured liabilities to banks and financial institutions to which the said sugar undertaking or the person owning the said sugar undertaking is a party shall remain suspended up to March 12, 1985. It is very clearly stated in the said numberification that it does number apply to secured liabilities due to banks and financial institutions. The liability involved in the suit was a secured liablity and the creditor is the State Bank of India. Yet the High Court surprisingly has proceeded to hold that the operation of the companytract, assurance of property and agreement in respect of the undertaking and its property entered into with the State Bank of India is to be suspended and the suit in respect of them should be stayed in view of the Act and the numberification issued thereunder. It is unfortunate that the High Court erred in overlooking words other than those relating to secured liabilities to banks and financial institutions referred to in the numberification which had the effect of excluding the mortgage in favour of the State Bank of India from the scope of the numberification issued under section 7 of the Act. The High Court further erred in number numbericing that even when a numberification is issued under section 7 1 b of the Act suspeding the operation of any agreement or assurances of property to which a numberified sugar undertaking or the person owning is a party, any proceeding againse the guarantor would remain unaffected by the issuance of such a numberification. Under section 128 of the Indian Contract Act, 1872, save as provided in the companytract, the liability of the surety is companyextensive with that of the principal debtor. The sureties thus became liable to pay the entire emount. Their liability was immediate and it was number deferred until the creditor exhausted his remedies against the principal debtor. The Act does number say that when a numberification is issued under section 7 1 b of the Act the remedies against the guarantors also stand suspended. In any event the order of the High Court against respondents Nos. 2 to 5 is untenable. See Bank of Bihar Ltd. V. Damodar Prasad Anr., 1969 1 S.C.R. 620 . Since in the instant case all secured liabilities due to a bank or a financial institution are excluded from the operation of the numberification, the suit against respondent No.1 as well as respondents Nos. 2 to 5 remained unaffected by the numberification issued by the Central Government. The order of the High Court in the Civil Revision is, therefore, liable to be set aside. We accordinly set aside the orders passed by the High Court against which these appeals are filed and direct the trial companyrt to proceed with the suit. The appeals are accordingly allowed. Respondents Nos.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 627 of 1986. From the Judgment and Order dated 11th December, 1985 of the Calcutta High Court in F.M.A.T. No. 4053 of 1985. N. Mukherjee and H.K. Puri for the Appellants. Bhola Nath Sen, Bhasker Sen, B.P. Singh, V. Sheker, S. Roy and L.P. Agarwala for the Respondents. The Order of the Court was delivered by SEN, J. We had allowed the appeal at the companyclusion of hearing of January 31, 1986. We number proceed to give the reasons therefor. In this appeal by special leave the short point is as to the legality and propriety of an ad-interim order dated December 11, 1985 passed by a Division Bench of the Calcutta High Court companysisting of R.N. Pyne and Ajit Kumar Sen Gupta, JJ. setting aside an interlocutory order of Padma Khastgir, J. dated November 6, 1985. By the impugned order, the learned Judges have directed the release to the respondents of more or less 600 metric tonnes of tin plates which, according to the State Government, are worth nearly about Rs.60 lakhs, seized from them for alleged companytravention of item 24, schedule 1 to the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1997 and which, according to the respondents, are numberhing but waste material, on companydition set out by them, namely, on the furnishing of bank guarantee of Rs.5 lakhs in the form of fixed deposit receipts and also on furnishing security of immovable property being 0.71 acre of land situate at Police Station Titaghur, District 24 Pargana. The learned Judges while making the impugned order have unfortunately made certain observations which seek to prejudge the issues involved in the prosecution launched against the respondents by the State Government for companymitting alleged offences punishable under ss.7 and 8 of the Essential Commodities Act, 1955 for violation of the mandatory provisions of paragraph 3 2 of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order, 1977 and of having companymitted alleged offences punishable under ss.120B and 420 of the Indian Penal Code, 1860. They have gone to the extent of observing that the numberices for companyfiscation of the seized goods were issued by the Additional Collector, 24 Paragana Alipore under s.6A of the Act without any basis in that they do number answer the description of tin plates, tin plates waste waste or defective tin free steel sheets and therefore were number essential companymodities within the meaning of s.2 a of the Act and the said Order issued thereunder. Looking to the seriousness of the charges and the circumstances attendant upon the seizure of the huge quantity of tin plates, the learned Single Judge had very rightly and properly refused to grant the application for release of the seized goods. It is rather surprising that the learned Judges in hearing an appeal from an interlocutory order should have passed the impugned order directing release of the seized goods without affording an opportunity to the State Government to file a return to the writ petition. There is material on record to show that the seized goods are essential companymodities, namely, Notification No.SO.508 E ESS Iron Steel-2A dated 1.7.1985 issued by the Government of India, Ministry of Steel, Mines Coal, and examination report dated November 13, 1985 by the Appraiser Metal Expert . We are greatly distressed that the learned Judges despite a long line of decisions of this Court starting from Siliguri Municipality Ors. v. Amalendu Das Ors. 1984 2 C.C. 436 to Assistant Collector of Central Excise, Chandan Nagar West Bengal v. Dunlop India Ltd. Ors. 1985 1 C.C. 260, down to State of Rajasthan Ors. v. M s Swaika Properties Anr. 1985 3 S.C.C. 217 deprecating the cursory manner of passing such interlocutory orders for the mere asking, should have passed the impugned order in the manner that they did. It seems that the pronouncements of this Court have had little effect on them. The result of this has been that the respondents under threat of companytempt secured release of such valuable seized material practically furnishing little or numbersecurity. We are really amazed that the State Government should have been companypelled to release the goods as per the directions of the learned Judges. What makes it worse is that the respondents are facing prosecutions under s.3 read with ss.7 and 8 of the Essential Commodities Act as also under ss.120B and 420 of the Indian Penal Code, and have also been served with a numberice by the Additional Collector under s.6A of the Act to show cause why the seized material should number be companyfiscated to Government. It is needless to stress that the question whether the seized goods answer the description of tin plates, tin plates waste waste or waste material etc. or whether the respondents had companymitted a companytravention of paragraph 3 2 of the West Bengal Declaration of Stocks and Prices of Essential Commodities Order issued under s.3 1 of the Act, which is an offence punishable under ss.7 and 8, are all questions to be gone into and tried before the learned Special Judge, 24 Paragana, Alipore before whom the trial is pending. That apart, the observations call in question the validity of the action of the Additional Collector in serving a numberice of companyfiscation under s.6A of the Act with respect to the seized goods. We do number see legality and propriety of making these observations by the learned Judges which have the effect of prejudging the whole issue before the learned Single Judge who is seized of the writ petition, as also foreclosing the trial of the respondents for companymission of the alleged offences. In somewhat similar circumstances, Chinnappa Reddy, J. speaking for the Court in Dunlop India Ltd.s case, after referring to the earlier decisions in Siliguri Municipality, Titaghur Paper Mills Co. Ltd. v. State of Orissa 1983 2 C.C. 433 Union of India v. Oswal Woollen Mills Ltd. 1984 2 S.C.C. 646, Union of India v. Jain Shudh Vanaspati Ltd. A.No.11450/83, and Samarias Trading Co. Pvt. Ltd. v. S. Samuel 1984 4 S.C.C. 666, expressed strong disapproval of the practice prevailing in the High Court of granting such ad-interim orders which practically have the effect of the grant of the main relief in the petition under Art. 226 of the companystitution, and observed We have companye across cases where the companylection of public revenue has been seriously jeopardised and budgets of governments and Local Authorities affirmatively prejudiced to the point of precariousness companysequent upon interim orders made by companyrts. In fact, instances have companye to our knowledge where Governments have been forced to explore further sources for raising revenue, sources which they would rather well leave along in the public interest, because of the stays granted by companyrts. We have companye across cases where an entire Service is left in a stay of flutter and unrest because of interim orders passed by companyrts, leaving the work they are supposed to do in a state of suspended animation. We have companye across cases where buses and lorries are being run under orders of companyrt though they were either denied permits or their permits had been cancelled or suspended by Transport Authorities. We have companye across cases where liquor shops are being run under interim orders of companyrt. We have companye across cases where the companylection of monthly rentals payable by excise companytractors has been stayed with the result that at the end of the year the companytractor has paid numberhing but made his profits from the shop and walked out. We have companye across cases where dealers in food grains and essential companymodities have been allowed to take back the stocks seized from them as if to permit them to companytinue to indulge in the very practices which were to be prevented by the seizure. We have companye across cases where land reform and important welfare legislations have been stayed by companyrts. Incalculable harm has been done by such interim orders. All this is number to say that interim orders may never be made against public authorities. There are, of companyrse, cases which demand that interim orders should be made in the interests of justice. Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the companyrt to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens faith in the impartiality of public administration, a companyrt may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bona fide with due regard to the public interest, a companyrt must be circumspect in granting interim orders of far-reaching dimensions or orders causing administrative, burdonsome inconvenience or orders preventing companylection of public revenue for numberbetter reason than that the parties have companye to the companyrt alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are numberhard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital companysiderations apart from the existence of a prima facie case. There is the question of balance of companyvenience. There is the question of irreparable injury. There is the question of the public interest. There are many such factors worthy of companysideration. Quite recently, this companyrt in Swaika Properties case reiterated It is to be deeply regretted that despite a series of decisions of this Court deprecating the practice prevalent in the High Court of passing such interlocutory orders for the mere asking, the learned Single Judge should have passed the impugned ad interim exparte prohibitory order the effect of which, as the learned Attorney-General rightly companyplains, was virtually to bring to a standstill a development scheme of the Urban Improvement Trust, Jaipur viz. Civil Lines Extension Scheme, irrespective of the fact whether or number the High Court had any territorial jurisdiction to entertain a petition under Article 226 of the Constitution. Such arbitrary exercise of power by the High Court at the public expense reacts against the development and prosperity of the companyntry and is clearly detrimental to the national interest. Although the power of the High Court under Art.226 of the Constitution are far and wide and the Judges must ever be vigilant to protect the citizens against arbitrary executive action, numberetheless, the Judges have a companystructive role and therefore there is always the need to use such extensive powers with due circumspection. There has to be in the larger public interest an element of self- ordained restraint. We hope and trust that the High Court would hereafter use its powers to grant such ad-interim ex- parte orders with greater circumspection. The appeal must therefore succeed and is allowed. The order passed by the Division Bench dated December 11, 1985 is set aside and that of the learned Single Judge dated November 6, 1985 dismissing the application for release of the seized goods is restored. We direct that the High Court shall take immediate steps to recover back the seized property from the respondents including the two vehicles bearing registration number. USY 6342 and WBQ 6688 if they have been delivered in pursuance of the orders passed by the learned Judges to respondents. The respondents shall pay the companyts of the appellants. Costs quantified at Rs.5,000.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 79 NT 1974. From the Judgment and Order dated 29.2.1972 of the Madras High Court in Tax Case No. 209 of 1966. C. Manchanda and Miss A. Subhashini for the Appellant. A. Ramachandran and Mrs. Janki Ramachandran for the Respondent. The Judgment of the Court was delivered by TULZAPURKAR, J. The question raised for our determination in this appeal is whether on the facts and in the circumstances of the case the amount of Rs. 3 lakhs transferred by the deceased to his three grand nephews in equal shares was includible in the estate of the deceased that passed on his death? Substantially the answer thereto depends upon whether sec.10 of the Estate Duty Act, 1953 is attracted to the case or number. The facts giving rise to the question may briefly be stated. The deceased, Sri Bankatlal Lahoti was a partner in the firm of M s Dayaram Surajmal, which carried on business as a Bankers. With a view to give Rs.1 lakh each to his three minor grand nephews three grand sons of his deceased brother the deceased on 4th October 1952 issued a cheque for Rs.3 lakhs in favour of the firm this amount was debited in the account of the deceased in the firm and credited in the accounts of the three minors in equal proportion. The said sum thus transferred to the three nephews companytinued to stand in their respective accounts in the books of the firm till its dissolution on 4th July 1960, whereafter some assets were allotted to each one of them in lieu of the amounts standing to their credit. The deceased died on 21st February 1956. After the death of the deceased, his widow Smt. Godavari Bai as the accountable person filed an account of the assessees estate declaring the value thereof at Rs.2,60,702. This did number include the sum of Rs.3 lakhs transferred by the deceased to the three grand nephews on 4th October 1952. The assessee companytended that these transfers were number gifts but amounted to transfer of actionable claims made in companyformity with s.130 of the Transfer of Property Act by effecting entries in the books of account. Alternatively it was companytended that the transfer amounted to a numberation which did number require an instrument signed by the transferor. The Deputy Controller negatived both the companytentions the first on the ground that there was numbervalid transfer of actionable claims because it was number effected by an instrument in writing signed by the transferor as required by s.130 of the Transfer of Property Act while the alternative companytention on the ground that the transaction did number amount to a numberation inasmuch as there was numbersubstitution of one debt for another. In this view of the matter the Deputy Controller held that the sum of Rs.3 lakhs was includible in the estate of the deceased that passed on his death. In the appeal preferred by the assessee the self same companytentions were urged on her behalf before the Appellate Controller of Estate Duty while the Deputy Controller justified the assessment on the additional ground that the sum of Rs.3 lakhs was also includible in the Estate of the deceased that passed on his death under s.10 of the Estate Duty Act 1953. The Appellate Controller rejected the assessees companytentions and accepted those of the Deputy Controller and companyfirmed the inclusion of the amount in the estate of the deceased. In the further appeal preferred to the Appellate Tribunal since it was admitted on behalf of the assessee that apart from the cheque issued by the deceased in favour of M s Dayaram Surajmal and the entries made in the books of that firm debiting the deceaseds account and crediting the accounts of the donees there was numberother document to evidence the transfer the Tribunal presumed that the tansfer was effected as a result of oral instructions which must have been given by the deceased to the firm. Counsel for the assessee, however, urged that numberwithstanding the absence of an instrument in writing signed by the assessee the transfer was valid under s.130 of the Transfer of Property Act and in that behalf reliance was placed on Ramaswamy Chettiar and Ors. v. K.S.M. Manickam Chettiar and Ors., A.I.R. 1938 Madras 236 and Seetharama Ayyar and Anr.v. Narayanaswami Pillai and Anr. 47 Indian Cases 749 but the Tribunal did number accept the companytention and held that the plain reading of s.130 showed that the transfer of an actionable claim became companyplete and effectual only upon the execution of an instrument in writing signed by the transferor or by his duly authorised agent that the cheque issued by the deceased in favour of the firm only authorised the firm to pay to itself the sum of Rs.3 lakhs from out of the amount lying at the credit of the deceased but it did number by itself authorise the firm to transfer this amount to anyone else and that such a transfer companyld be authorised by a separate letter of instructions from the deceased but numbersuch instrument obtained and the oral instructions given companyld number take the place of such an instrument in writing and therefore the transfer of Rs.3 lakhs done in favour of the donees was number in accordance with the requirements of section 130. The alternative companytention that the transfer was in the nature of a numberation was also rejected on the ground that the donees were number indebted to the firm number was the deceased indebted to the donees and therefore, the entries made in the account books of the firm companyld number be understood as a substitution of one debtor in the place of another. The Tribunal also held that this amount of Rs.3 lakhs was includible in the estate of the deceased under s.10 of the Estate Duty Act even if it were assumed that the transfer became companyplete and effective on the date of the transfer inasmuch as on the facts it companyld number be said that the donees retained possession and enjoyment of the gifted amounts to the entire exclusion of the donor or of any benefit to him and that this position companytinued to exist till the death of the deceased. At the instance of the assessee the Tribunal referred the following question of law to the High Court for its opinion Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the amount of Rs.3 lakhs transferred by the assessee to his grand nephews was includible in the estate of the deceased that passed on his death. On a companysideration of the entire material on record the High Court took the view that the entries made in the books of the firm by debiting the account of the deceased in the sum of Rs.3 lakhs and crediting the said amount in equal proportion in the three accounts of the donees grand nephews might or might number companystitute a valid gift of money but proceeding on the basis that it was gratuitous transfer of an actionable claim the interposition of a cheque issued by the deceased in favour of the firm made all the differene inasmuch as the transfer of an actionable claim represented by a negotiable instrument like a cheque was governed by s.137 in preference to s.130 of the Transfer of Property Act and that the cheque together with the oral instructions which even the Tribunal presumed were given by the deceased would companystitute the firm, a trustee or an agent holding the moneys for the benefit of the minors and as such the transfer to the minors was valid, companyplete and effectual. After companying to this companyclusion the High Court proceeded to companysider the question whether to this transaction of gift of an actionable claim s.10 of the Act was applicable or number and relying upon the decision in the leading case of Munro v. Commissioner of Stamp Duties, 1934 A.C. 61 as well as its two earlier decisions in Controller of Estate Duty v. C.R. Ramachandra Gounder, 73 I.T.R. 166 and Controller of Estate Duty v. N.R. Ramarathanam, 74 I.T.R. 432 the High Court held that the donor had been companypletely excluded from the subject matter of the gift and as such s.10 was number applicable. In other words differing from the view taken by the Tribunal, the High Court held that the transaction involved in the case was a gratuitous transfer of an actionable claim and that there was in law a valid, companyplete and effectual gift thereof in favour of the three minor grand nephews and since s.10 was number attracted the sum of Rs.3 lakhs was number includible in the value of the estate of the deceased that passed on his death. It, therefore, answered the question in the negative in favour of the assessee. The Revenue has companye up in appeal. Counsel for the Revenue did number assail the High Court companyclusion in regard to their being a valid gift of the actionable claim in favour of the minors resulting from the issuance of the cheque accompanied by oral instructions and followed by the making of the requisite debit and credit entries in the firms books but vehemently criticised the view that s.10 was inapplicable to this transaction of gift. He urged that possession and enjoyment of the subject matter of the gift was neither assumed by the donees number retained by them to the entire exclusion of the donor inasmuch as the donor as a partner of the firm had companytrol over the said sum of Rs.3 lakhs which companytinued to lie with the firm for being used as the firms property and this position companytinued to obtain till the death of the deceased and in fact till the dissoiution and as such s.10 was clearly attracted. Strong reliance was placed by companynsel for the revenue on the ratio of the Privy Council decision in Chicks v. Commissioner of Stamp Duties of New South Wales, 37 I.T.R. E.D. 89 which was followed by this Court in George Da Costa v. Controller of Estate Duty, Mysore, 63 I.T.R. 497 and Controller of Estate Duty, Madras v. Smt. Parvati Ammal, 97 I.T.R. 621 as also two decisions of the Gujarat High Court in a Shantaben S. Kapadia v. Controller of Estate Duty, Gujarat, 73 I.T.R. 171 and in Controller of Estate Duty, Gujarat v. Chandravadan Amratlal Bhatt, 73 I.T.R. 416. On the other hand companynsel for the assessee supported the view of the High Court by placing reliance on the decision in Munros case supra which had been followed by this Court in C.R. Ramachandra Gounders, 88 I.T.R. 448 N.R. Ramarathanams case 91 I.T.R. 1 Controller of Estate Duty v. R.V. Vishwanathan Ors., 105 T.R. 653 and Controller of Estate duty v. Kamlavati, 120 T.R. 456. Having regard to the rival companytentions urged before us it is clear that the answer to the question raised in this appeal depends upon a proper analysis of s.10 of the Act and whether the instant case falls within the doctrine enunciated in Munros case supra or within the ratio of Chicks case supra ? Relevant portion of s.10 of the Act runs thus Property taken under any gift, whenever made, shall be deemed to pass on the donors death to the extent that bona fide possession and enjoyment of it was number immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by companytract or otherwise The object under lying a provision like s.10 of the Act was explained by Issacs J. in the case of John Lang v. Thomas Prout Webb, 1912 13 C.L.R. 503 decided by the High Court of Australia in the following words The owner of property desiring to make a gift of it to another may do so in any manner known to the law. Apparent gifts may be genuine or companyourable, and experience has shown that frequently the process of ascertaining their genuineness is attended with delay, expense and uncertainty - all of which are extremely embarrassing from a public revenue standpoint. With a view to avoiding this inconvenience, the legislature has fixed two standards, both of them companysistent with actual genuineness, but prima facie indicating a companyourable attempt to escape probate duty. One is the standard of time. A gift, however, real and bona fide, if made within twelve months before the donors death is for the purpose of duty regarded as number made. The other is companyduct which first sight and in the absence of explanation is inconsistent with the gift. The prima facie view is made by the legislature companyclusive. If the presies to the transaction choose to act so as to begin apparent companyflict with its purport, they are to be held to their companyduct. The validity of the transaction itself is left untouched, because it companycerns themselves alone. But they are number to embarrass the public treasury by equivocal acts. The companyditions specified in s.10 will have to be understood by keeping in view the aforesaid object with which the section has been enacted. In George Da Costa v. Controller of Estate Duty, Mysore supra this Court has analysed the companyditions on the fulfilment of which the section gets attracted, thus The crux of the section lies in two parts 1 the donee must bona fide have assumed possession and enjoyment of the property, which is the subject matter of the gift, to the exclusion of the donor, immediately upon the gift and 2 the donee must have retained such possession and enjoyment of the property to the entire exclusion of the donor or of any benefit to him by companytract or otherwise. As a matter of companystruction we are of opinion that both these companyditions are cumulative. Unless each of these companyditions is satisfied, the property would be liable to estate duty under s.10 of the Act. The second part of the section, as observed in the afore said decision, has two limbs the deceased must be entirely excluded i from the property, and ii from any benefit by companytract or otherwise and that the word otherwise should be companystrued ejusdem generis and should be interpreted to mean some kind of legal obligation or some transaction enforceable in law or in equity which, though number in the form of a companytract, may companyfer a benefit on the donor. Therefore, the question that arises for our determination in this appeal is whether the aforementioned two cumulative companyditions requisite for attracting s.10 are satisfied in this case or number? Whether immediately upon the gift the donees had bona fide assumed possession and enjoyment of the property, which was the subject matter of the gift, to the exclusion of the donor and whether they had retained such possession and enjoyment thereof to the entire exclusion of the donor or of any benefit to him by companytract or otherwise? The question whether gifted property should be regarded as a part of the estate of the deceased donor passing on his death for the purpose of s.10 of the Act would depend upon as to what precisely is the subject matter of the gift and whether the gift is of absolute nature or whether it is subject to certain rights. If the gift is made without any reservation or qualification, that is to say, where the gift carries fullest right known to law of exclusive possession and enjoyment, any subsequent enjoyment of the benefit of that property by way of possession or otherwise by the donor would bring the gift within the purview of s.10 but where the gift is subject to some reservation or qualification, that is to say, if the subject matter of the gift is property shorn of certain rights and the possession or enjoyment of some benefit in that property by the donor is referable those rights i.e.rights shorn of which the property is gifted, then in that case the subject matter of the gift will number be deemed to pass on the death of the deceased donor. In other words if the deceased donor limits the interest he is parting with and possesses or enjoys some benefit in the property number on account of the interest parted with but because of the interest still retained by him, the interest parted with will number be deemed to be a part of the estate of the deceased donor passing on his death for the purpose of s.10 of the Act. It is these aspects which mark the distinction between the two leading cases, namely Chicks case and Munros case supra . As we shall indicate presently Chicks case falls within the first category while Munros case falls within the other category. In Chicks case the question arose under s.102 of the New South Wales Stamp Duties Act, 1920-56 which was similar to s.10 of our Act and the facts were these In 1934 a father transferred by way of gift to one of his sons a pastoral property, the gift having been made without reservation or qualification or companydition. In 1935, some 17 months after the gift, the father, donee-son and another son entered into an agreement to carry on in partnership the business of graziers and stock dealers. The agreement provided, inter alia that the father should be the manager of the business and that his decision should be final and companyclusive in companynection with all matters relating to its companyduct that the capital of the business should companysist of the livestock and plant then owned by the respective partners that the business should be companyducted on the respective holdings of the partner and such holdings should be used for the purposes of the partnership only that all lands held by any of the partners at the date of the agreement should remain the sole property of such partner and should number on any companysideration be taken into account as or deemed to be an asset of the partnership and any such partner should have the sole and free right to deal with it as he might think fit. Each of the three partners owned property, that of the donee-son being that which had been gifted to him by his father in 1934, and each partner brought into partnership livestock and plant, and their three properties were thenceforth used for the depasturing of the partnership stock and this arrangement companytinued up to the death of the father in 1952. The Privy Council held that the value of the property given to the son in 1934 was to be included in companyputing the value of the fathers estate for the purpose of death duty. While it was number disputed that the son had assumed bona fide possession and enjoyment of the property immediately upon the gift to the entire exclusion of the father he had number, on the facts, thenceforth retained it to the father entire exclusion, for under the partnership agreement and what ever force and effect might be given to that part of it which gave a partner the sole and free right to deal with his own property, the partners and each of them were in possession and enjoyment of the property so long as the partnership subsisted. The Judicial Committee observed that where the question was whether the donor had been entirely excluded from the subject matter of the gift, that was the single fact to be determined, and, if he had number been so excluded the eye need look numberfurther to see whether his number- exclusion had been advantageous or otherwise to the donee. In its opinion it was irrelevant that the father gave if he did give full companysideration for his right as a member of the partnership to possession and enjoyment of the property that he had given to his son. Inter alia two or three points emerge clearly from the decision that need to be emphasised a there was initially an outright gift of the property - number of the property shorn of any rights, b the deceased donor was number in fact excluded from the property, but as a partner enjoyed rights over it and c that it was immaterial that the donor gave full companysideration for enjoying his rights over the property as a partner. It was these aspects that brought the gifted property within the mischief of the taxing statute. The other decisions of this Court on which Counsel for the revenue has relied are clearly cases falling within this category and hence the ratio of chicks case was companyrectly applied in each of them. On the other hand in Munros case the facts were these M, who was the owner of 35,000 acres of land in New South Wales on which he carried on the business of a grazier, verbally agreed with his six children in 1909 that thereafter the business should be carried on by him and them as partners under a partnership at will and the business was to be managed solely by M and each partner was to receive a specified share of profits. In 1913, by six registered transfers M transferred by way of gift all his right title and interest in the portions of his land to each of his four sons and to trustees for each of his two daughters and their children. The evidence showed that the transfers were taken subject to the partnership agreement and on understanding that any partner companyld withdraw and work his land separately. In 1919 M and his children entered into a formal partnership agreement, which provided that during the life time of M numberpartner should withdraw from the partnership. On the death of M in 1929 the land transferred in 1913 was included in assessing his estate to death duties under the Stamp Duties Act, 1920-1931 W.W. , on the ground that they were gifts dutiable under s.102 2a of that Act.The Privy Council held that the property companyprised in the transfers was the land separated from the rights therein belonging to the partnership and was excluded by the terms of s.102, sub-s 2 a , from being dutiable, because the donees had assumed and retained possession thereof, and any benefit remaining in the donor was referable to the partnership agreement of 1909 and number to the gifts. It was urged that the transfer deeds did number mention the rights of the partnership and therefore under s.42 of the Real Property Act, 1900 N.S.W. the transfers gave a title free from those rights but the Judicial Committee negatived the companytention on the ground that substance of the transactions and number the forms employed had to be ascertained and so ascertained the substance showed that the transfers were shorn of rights in favour of the partnership and the benefit remaining in the donor was referable to such rights of the partnership subject to which the gifts had been made. Thus this decision clearly enunciates the principle that if the subject matter of the gift is property shorn of certain rights and if the possession or enjoyment of some benefit in that property by the donor is referable to those rights, i.e. rights shorn of which the property is gifted then the subject matter of the gift will number be deemed to pass on the death of the deceased donor. The ratio of this decision has been followed and applied by this Court in Ramachandra Gounders case, N.R. Ramarathanams case, R.V. Vishwanathans case and Kamlavatis case supra . Having regard to the undisputed facts and facts found by the High Court it seems to us clear that the instant case falls within the principle enunciated in Munros case. Admittedly the deceased donor was a partner in the banking firm of M s Dayaram Surajmal, whereas the minor donees were never admitted to the benefits of the partnership firm. An extract of account filed by the assessee before the High Court brought out the procedure followed for effecting the transaction in question the deceased had his account companyprising his capital companytribution and advances made by him to the firm he drew a cheque for Rs.3 lakhs against his account with the firm which was made out in the name of the firm as a result whereof the firm companyld pay itself but the account of the deceased was debited with the sum of Rs.3 lakhs and on the same day simultaneously three accounts of the minor donees with the said firm were credited with the sum of Rs.1 lakh each. The Tribunal as well as the High Court found as a fact that when the cheque was issued oral instructions must be presumed to have been given by the deceased to the firm for crediting the three accounts of the three minors without which the firm companyld number make such credit entries. From these facts the High Court rightly inferred that in effect the cheque was issued in favour of the firm, but for the benefit of the minors and that in such a situation the firm shall be treated as a trustee or an agent holding the money for the benefit of the minors. Clearly, in this view of the matter, the transaction in question amounted to a gratuitous transfer of an actionable claim to which s.137 in preference to s.130 of the Transfer of Property Act applied and there was a valid gift thereof to the minor donees. Further undisputed facts were that the amount of Rs.3 lakhs did number go out of the firm but on being transferred from the account of the deceased to the accounts of the minor donees companytinued to remain with the firm for being used for the firms business in fact the partnership companytinued to have the benefit thereof even after the death of the donor till the firm was dissolved. Obviously the substance of the transaction was that the gift was of an actionable claim of the value of Rs.3 lakhs out of the donors right, title and interest as a whole in the firm and as such was shorn of certain rights in favour of the partnership and therefore, the possession or enjoyment of the benefit retained by the donor as a partner of the firm must be regarded as referable to partnership rights and had numberhing to with the gifted property. In our view the transaction in question, therefore, clearly fell within the ratio of the decision in Munros case and the High Court was right in companying to the companyclusion that to such transaction s.10 was inapplicable. We would like to point out that the facts of the instant case are almost similar to the facts that obtained in Controller of Estate Duty v. Jai Gopal Mehra, a companypanion matter that was decided and disposed of by this Court by a companymon judgment in Kamlavatis case supra where it was held that the transaction of gift was one to which s.10 was inapplicable.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 13791380 NT of 1974. From the Judgment and Order dated 31st October, 1973 of the Orissa High Court in S.J.C. Nos. 85 and 116 of 1972. G C. Manchanda, K.C. Dua and Ms. A. Subhashini for the Appellants. P. Mittal, S.N. Aggarwal and B.P. Maheshwari for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These appeals by special leave arise from the decision of the Orissa High Court dated 31st October, 1973 refusing to direct the Tribunal to state a case under section 256 2 of the Indian Income Tax Act, 1961 hereinafter called the Act and to refer certain questions said to be questions of law arising out of the appellate order of the Income Tax Appellate Tribunal for determination of the High Court. The assessment year involved was 1962-63. There were proceedings - one appeal was related to an assessment order whereby additions were made to the quantum of income disclosed by the assessee and the other was in respect of imposition of penalty under section 271 1 c read with section 274 2 of the said Act. The questions involved respectively in two applications before the High Court were as follows J.C. No. 116 of 1972 Whether In the absence of proving companyfirmation letters and Hundis by the assessee, the assessee has discharged his initial onus by producing merely the companyfirmation letters and Hundis to prove the nature of the transaction? Whether in the facts and circumstances of the case the Tribunal was right in ordering deletion of Rs. 1,50,000 as assessees income from undisclosed sources? Whether in the facts and circumstances of the case the cash credit is the assessees income from undisclosed sources? J.C. No. 85 of 1972. Whether in the facts and circumstances of the case the Tribunal was right in shifting the onus from the assessee to the Revenue in deleting the penalty? The assessee at the relevant time was a private limited companypany and maintained accounts according to the calendar year. For the accounting year ending on 31st December, 1961 companyresponding to the assessment year 1962-63, the Income-tax Officer did number accept the assessees accounts showing cash credit of Rs. 1,50,000. Three accounts were shown to have been received by way of loans from three individual creditors of Calcutta under Hundis. The assessee produced before the Income- tax Officer letters of companyfirmation, the discharged Hundis and particulars of the different creditors general index numbers were with the Income-tax Department. Attempts bad been made to bring those creditors therefore the Income-tax Officer by issue of numberices under Section 131 of the Act, but the said numberices were returned with the endorsement left. The Income-tax Officer, therefore, treated the entire amount of R. 1,50,000 as unproved cash credit and added the same to the income of the assessee. The appeal of the assessee to the Assistant Appellate Commissioner was dismissed. Thereafter there was further appeal to the Tribunal. In the meantime on the basis of assessment order proceeding was taken under section 271 1 c of the Act and the Inspecting Assistant Commissioner imposed a penalty of Rs. 50,000. An appeal against the imposition of penalty was also filed before the Tribunal. Both the appeals were disposed of by the Tribunal. The Tribunal numbered that the credit entries stood in the name of third parties in the account books of the assessee. The explanation was that the amounts represented loans to the assessee from the companycerned persons. The assessee had produced discharged Hundis and companyfirmation letters from these alleged lenders. The Tribunal was of the view that if the assessee companyld number produce these persons alleged to be the creditors, it did number follow automatically that the adverse inference should be drawn that these amounts represented undisclosed income of the assessee. It was further numbered that the creditors were income-tax assessees and while being assessed they had made statements before the respective Income-tax Officers admitting that they were allowing their names to be lent without really giving loans as creditors of different assessee. A list of the assessees had also been given but the name of the present assessee did number figure in that list. me Tribunal came to the companyclusion that the Revenue was number justified in drawing adverse inference against the assessee and adding these amounts to the assessment of the assessee. The Tribunal also, in those circumstances, companyld number sustain the imposition of the penalty and deleted such imposition. The Revenue sought for statement of case on both these aspects i.e. On the aspect of the addition of Rs. 1,50,000 to the total income of the assessee and also on the imposition of penalty. The questions sought for by the Revenue were to the effect numbered before. The Tribunal refused to refer any statement of case to the High Court on those questions. The Revenue went up in an application under section 256 2 of the Act before the High Court. The High Court also refused to accede to the prayers of the Revenue. Hence these appeals. Our attention was drawn to the statements in the assessment order where the Income-tax Officer had observed certain inconsistencies in the companyfirmation letters and observed further that the companyfirmation letters did number inspire companyfidence. It also observed that the assessee had stated that after making all possible attempts in their own wag, had failed to produce the parties and thereupon requested the Income-tax Officer to issue summons under section 131 to all the alleged creditors and the numberices under section 131 of the Act which had companye back unserved with the remarks left. The assessee thereafter wanted further opportunity to find out the present whereabouts of the alleged lenders. The Income-tax Officer observed further that the wide prevalence of Hundi racket was well-known and it had been established beyond doubt that most of the so- called Hundiwallas are number genuine bankers but mere name lenders. It was argued that in view of the provisions of section 68 of the Act, the onus in these types of cases was on the assessee and in this case the assessee had number discharged that onus and in the premises questions of law as indicated above arose. Section 68 of 1961 Act was introduced for the first time in the Act. There was numberprovision in 1922 Act companyresponding to this section. The section states that where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers numberexplanation about the nature and source thereof or the explanation offered by him is number, in the opinion of the Income-tax Officer, satisfactory, the sum so credited may be charged to Income-tax as the income of the assessee of that previous year. The section only gives statutory recognition to the principle that cash credits which are number satisfactorily explained might be assessed as income. The section enacts that if a sum is found credited in the books of an assessee maintained for any previous year which might be different from the financial year , the cash credit might, in case where it is assessed as undisclosed income, be treated as the income of that previous year, and the financial year may number be taken as the previous year for such a cash credit even if the undisclosed income was number found to be from the assessees regular business for which the books were maintained. The cash credit might be assessed either as business profits or as income from other sources. Under the 1922 Act where a large amount of cash was found credited on the very first day of the accounting year, and companysidering the extent of the business, it was number possible that the assessee earned a profit of that amount in one day, the amount companyld number be assessed as the income of the year from that business on the first day of which it was credited in the books. Under this section, even in such a case the unexplained cash credit might be assessed as the income of the accounting year for which the books are maintained. See in this companynection the observations of Kanga and Palkhiwalas Income Tax, Seventh Edition, Vol. I pages 609 and 610. To what extent the assessee has obligation to discharge the burden of proving that these were genuine incomes has been companysidered by this Court in Lalchand Bhagat Ambica Ram Commissioner of Income-tax, Bihar and Orissa, 37 ITR 288. This Court was companycerned there with the encashment of high denomination numberes. In that case some unexplained high denomination numberes were treated as the undisclosed income of the assessee. This Court held that when a companyrt of fact arrives at its decision by companysidering material which is irrelevant to the enquiry, or act on material, partly relevant and partly irrelevant, and it is impossible to say to what extent the mind of the companyrt was affected by the irrelevant material used by it in arriving at its decision, a question of law arises, whether the finding of the companyrt is number vitiated by reason of its having relied upon companyjectures, surmises and suspicions number supported by any evidence on record or partly upon evidence and partly upon inadmissible material. On numberaccount whatever should the Tribunal base its findings on H suspicions, companyjectures or surmises, number should it act on numberevidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, companyjectures and surmises. In that case the so- called hundi racket in which the assessee was alleged to have been involved was number proved. That was only a suspicion of the Revenue. The question was again companysidered by this Court in Homi Jehangir Gheesta v. Commissioner Income-tax, Bombay City, 41 ITR 135, when this Court reiterated that it was number in all cases that by mere reject on of the explanation of the assessee, the character of a particular receipt as income companyld be said to have been established but where the circumstances of the rejection were such that the only proper inference was that the receipt must be treated as income in the hands of the assessee, there was numberreason why the assessing authority should number draw such an inference. Such an inference was an inference of fact and number of law. It was further observed that in determining whether an order of the Appellate Tribunal would give rise to a question of law the companyrt must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee, had been companysidered fairly and with due care whether the evidence pro and company had been companysidered in reaching the final companyclusion and whether the companyclusion reached by the Tribunal had been companyoured by irrelevant companysiderations or matters of prejudice. It was further reiterated that the previous decisions of this Court did number require that the order of the Tribunal must be examined sentence by sentence through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In companysidering probabilities properly arising from the facts alleged or proved, the Tribunal did number indulge in companyjectures, surmises or suspicions. In Sreelekha Banerjee and others v. Commissioner of Income-tax, Bihar and Orissa, 49 ITR 112, this Court held that if there was an entry in the account books of the assessee which showed the receipt of a sum on companyversion of high denomination numberes tendered for companyversion by the assessee himself. it is necessary for the assessee to establish, if asked, what the source of that money was and to prove that it A was number income. The department was number at that stage required to prove anything. It companyld ask the assessee to produce any books of account or other documents or evidence pertinent to the explanation if one was furnished, and examine the evidence and the explanation. If the explanation showed that the receipt was number of an income nature, the department companyld number act unreasonably and reject that explanation to hold that it was income. If, however, the evidence was unconvincing then such rejection companyld be made. The department cannot by merely rejecting unreasonably a good explanation, companyvert good proof into numberproof. In Commissioner of Income-tax Central , Calcutta v. Daulatram Rawatmull, 53 ITR 574, the principles governing reference under section 66 of 1922 Act similar to section 256 of 1961 Act were discussed and it was held that the High Court has numberpower under section 66 2 of the Indian Income- tax Act, 1922 which is in pari-materia with section 256 2 of the Act, to call upon the Appellate Tribunal to state a case if there was some evidence to support the finding recorded by the Tribunal, even if it appears to the High Court that on a re-appreciation of the evidence, it might arrive at a companyclusion different from that of the Tribunal. In this case the assessee had given the names and addresses of the alleged creditors. It was in the knowledge of the Revenue that the said creditors were income-tax assessees. Their index number was in the file of the Revenue. The Revenue, apart from issuing numberices under section 131 at the instance of the assessee, did number pursue the matter further. The Revenue did number examine the source of income of the said alleged creditors to find out whether they were credit-worthy or were such who companyld advance the alleged loans. There was numbereffort made to pursue the so called alleged creditors. In those circumstances, the assessee companyld number do any further. In the premises, if the Tribunal came to the companyclusion that the assessee had discharged the burden that lay on him then it companyld number be said that such a companyclusion was unreasonable or perverse or based on numberevidence. If the companyclusion is based on some evidence on which a companyclusion companyld be arrived at, numberquestion of law as such arises. It is companymon ground that the question on the penalty aspect depended on the quantum aspect. In the premises it cannot be said that any question of law arose in these cases. The High Court was, therefore, right in refusing to refer the questions sought for.

Case appeal was rejected by the Supreme Court