Datasets:

Yashaswat

/

Indian-Legal-Text-ABS

like 4

N: Criminal Appeal Nos. 100 146 of 1976. Appeals by Special Leave from the Judgment and Order dated 29 8 75 of the Andhra Pradesh High Court in Crl. Rev. Cases Nos. 256 302/75 and 437 483/75 respectively. Niren De, Attorney General for India (In Crl. A.100, 101 and 112 of 1976) P. Ram Reddy (Crl. A.102 111 and 113 145/76); P. P. Rao and R. K. Deshpande for the appellants in all the appeals. Sachin Chaudhary (In Crl. A.100/76); section V. Gupte (In Crl. A.101/76) T. Ramam, B. Parthasarthi for Respondents in Crls. A. Nos. 101 105, 107 118 120 139 and 141 146/76. The Judgment of the Court was delivered by 609 BEG, J. These appeals, by Special Leave, raise an apparently simple question which appears to be essentially one of fact. But, as the real question to be answered was not correctly posed before itself by the High Court of Andhra Pradesh, it misdirected itself as to what was to be really decided by it and also how it should be decided according to rules of ordinary logic as well as law. Ordinarily, this Court does not interfere with findings of fact. But, where the errors of logic as well as law, discussed below, appear to us to be gross and to have occasioned a miscarriage of justice, we are constrained to interfere. The crucial question to be decided may be put as follows: What did the respondents understand when they obtained permits for the despatch of "broken rice (raw, boiled)" shown in their export permits? If the respondents understood what their permits meant, they could not, under the guise of these permits, transport any other kind of rice. It was their duty to abide by the terms of their permits, and to show, when proceeded against, that they did so. Each permit shows: quantity permitted to be sent; the duration of the validity of the permit; the name of the consignor; the name of the station from which rice was to be despatched; the means of despatch (shown as "by rail only"); the name and address of the consignee (shown as "self"); the State to which the consignment was to be booked (shown as Kerala State), purpose of the consignment (shown as trade account). The permit was described as an "export permit". The details mentioned above were given in a schedule, the permit was addressed "to the Miller", and its operative part said: "In exercise of the powers conferred under clause 3 of the Southern States (Regulation of Export of Rice). Order, 1964 read with G.O.Ms. No. 2495 F & A Dt. 17 10 1964 the Collector hereby permits the transport of rice products mentioned in the Schedule subject to the conditions specified below". The specified conditions, in addition to those mentioned in the details given above were: "1. This permit is not transferable. It is liable for cancellation at any time by the issuing authority for the reasons to be recorded in writing. It is valid only for the period mentioned in the permit and the consignment must be booked from the despatching station before the expiry of such period. Any permit that is taken out but not utilised should be returned immediately to issuing authority. The stuff should be got checked by the Assistant Grain Purchasing Officer assisted by the Food Inspector concerned while loading into the wagon and a certificate should be 610 got recorded on the permit itself that the stuff loaded is broken rice and not whole rice and the quantity loaded. In respect of self permits the permit holder, should furnish to the Collector, West Godavari, Eluru (A.P.) and the District Supply Officer, Tedepalligudam and the Collector of the importing District within one month from the date of issue of the permit the particulars of the Station to which the consignment is booked names and addresses of the buyers". The allegation against the respondents was that they had broken the conditions of their permits inasmuch as their consignments, which had been seized, whilst being transported in railway wagons from Andhra Pradesh to Kerala, consisted of rice instead of "broken rice". After the issue of show cause notices and the replies filed by the respondents, a number of writ petitions was filed on a number of grounds in the High Court of Andhra Pradesh questioning the validity of confiscation proceedings under Section 6A of the (hereinafter referred to as 'the Act '). These writ petitions were dismissed on 25th October, 1971. After the dismissal of the Writ Petitions mentioned above, the Revenue Officer passed orders, on 18th November, 1971, confiscating only what was estimated as the quantity of "whole rice", according to the standards applied in drawing up an analysis report from samples which the Revenue officer accepted as correct. The respondents then appealed to the District and Sessions Judge who, on 16th February 1972, set aside the orders of the Revenue officer and directed him to decide again the question involved in the cases in accordance with law, after giving full opportunity to the respondents to object to the analysis which was to be carried out afresh in their presence. The District Judge did not consider the report of the Assistant Marketing officer of Chitur, after an analysis carried out in the presence of the District Revenue officer, to be a sufficient compliance with the requirement to give due opportunity to the respondents to show what the consignments contained. It may be mentioned here that the reports upon which proceedings were commenced in respect of a very large quantity of rice had been filed by the Inspector of Police of the Vigilance Section of the Civil Supplies ' Department. It was clearly mentioned in these reports that the rice which was seized by the police in the course of its transit in a number of wagons of a goods train proceeding from Andhra Pradesh to Calicut in Kerala State was not "broken rice". The respondents are regular Millers whose business it is to know the varieties and the nomenchature of various types and qualities of rice. They could not, therefore, be ignorant of what was the case against them. Moreover, when the cases were actually remanded to the Revenue officer with specific directions to give the respondents fuller opportunity to show cause and meet the cases against them there could be no possible excuse for the respondents not to put in evidence of their side of the case if they had a case to put up in defence. 611 The Revision Applications by the State against the orders of District and Sessions ' Judge were dismissed by the High Court on 29th March, 1973. During the pendency of the revision applications in the High Court. notices of auction of boiled rice were issued under the orders of the High Court. The rice was sold as ordinary "boiled rice". It is alleged on behalf of the State, that the price for which the boiled rice. seized from the Railway wagons, was sold on 5th October, 1972. was about Rs. 30 lakhs. This price, it was submitted, could only be fetched by "whole rice". We are, however, more concerned with what took place after the High Court had upheld the order of the District & Sessions ' Judge remanding the case for full hearing and adduction of evidence by both sides. In his final order of 4th December, 1973, after the remand, the District Revenue Officer gave the whole history of the case and pointed out the opportunities the respondents had been given for substantiating their case if they had one worth consideration. The District Judge had remanded the case principally because the first report of the analyst, issued by the Assistant Director of Marketing, Chitur, had been made without an analysis carried out in the presence of the respondents although it was made in the presence of the District Revenue Officer. The District Judge had held that the Asstt. Director of Marketing should have himself given evidence before his report could be treated as evidence. After the case had been remanded, there was a fresh analysis with fresh samples taken under the orders of the High Court. And, this second analysis took place in the presence of the respondents. The Assistant Director of Marketing, who made the analysis, was produced in evidence. The respondent had full opportunity of cross examining him and also of giving their own versions. But, they contented themselves with some cross examination of the Assistant Director of Marketing in the course of which it was not suggested to the Assistant Director that the test of "broken rice" was itself incorrect. On the other hand, in answer to one of the questions in cross examination, the Assistant Director of Marketing replied: "I agree that any grain which is less than 3/4th of the whole grain is a broken. According to Serial Grading Rules. 1966, rice includes brokens, but it is classified separately". This meant that the respondents knew, and, therefore, suggested that the test applied by the Asstt. Director, Marketing that any grain less than 3/4th of the whole length was to be deemed as "broken", was correct. The cross examination was directed towards showing that, accepting this test, known to both sides, the consignment was of "broken rice". 612 It is true that the Assistant Director, in his evidence, admitted that he had not actually measured a whole grain. He said that he had adopted the method of differentiation by looking at the grains with the naked eye and by picking them up with his hand using his own fingers. He also admitted that, in ten out of the 50 samples he had analysed, the percentage of brokens in the analysis conducted in 1973 was less than that of 1971 from 2 to 10% but in others it was greater. The Revenue Officer, after a careful consideration of all the facts of the case and the whole background, including the test laid down in the Hand book on Grading Foodgrains and Oilseeds, had reached the conclusion that the whole of the quantity seized was liable to be confiscated because no sample taken from the bags contained a minimum percentage of 60% of "broken" grains satisfying the test adopted, that is to say, grain less than 75% of its normal length would be deemed to be broken. The Revenue officer treated the opinion of the Assistant Director as that of an expert which ought to be accepted. The District and Sessions ' Judge, in appeals from the orders of the Revenue officer, reconsidered the whole case at considerable length and allowed the appeals partially by holding that percentage which could be fairly classified as broken had to be deducted after an addition to it of 2% as allowable "foreign matter". The Sessions ' Judge 's interpretation of the remand order, as affirmed in revision by the High Court, was that the Revenue Officer could only determine the quantities of "broken" rice and whole rice to decide what proportion was and not whether the whole of the seized rice was liable to confiscation as not covered by the permits. It appears that there had been an order by the Revenue Officer releasing 12% of the total rice as equivalent of "broken rice" which had not been set aside and had become final. On the question whether the respondents could be said to have a mens rea the learned Sessions ' Judge observed: "I am not prepared to accept the contention that they are under a mistaken impression that whole rice, when boiled could become boiled brokens. I do not also admit that they are not having any mens rea. I am of the opinion that they had certainly managed with the officers, and attempted to transport whole rice (boiled) under the guise of brokens (boiled). Therefore, it cannot be said that they have no mens rea in this case when they attempted to transport whole rice as brokens. It is a fact that huge quantities of rice are involved and the money involved is also huge. But the crime that these appellants attempted to prepetrate can also be considered as huge (Grave) in consonance with the quantity of rice they attempted to transport. Therefore, I am of the opinion, that these appellants do not deserve sympathy and it does not require any more alteration of the lower Court 's orders, than the one I have already indicated above". Hence, with the abovementioned notification of the orders of the Revenue Officer by adding 2% for "foreign matter" to the amount 613 released as equivalent of "broken rice", the respondents ' appeals were dismissed by the Sessions ' Judge on 20th November, 1974. Both sides filed revision applications. The High Court had before it two sets of Revision applications. One of these was by the State of Andhra Pradesh against that part of the order of the learned Sessions ' Judge by which he held that the Revenue Officer had no jurisdiction, after the remand order, to order confiscation of the whole quantity of rice. The State claimed the price of the whole of the seized consignment. The other set of revision applications before the High Court was of the respondent millers against the affirmations of the orders of the Revenue Officer. The respondents submitted that no part of the consignment was liable to be confiscated as it was not proved that it was not broken rice. They, therefore, urged that they should get the price of the whole quantity sold. The High Court also went into the history of the case. It held that the object of the remand order "was to take samples of the stocks for the purpose of analysis in the presence of the rice millers and after the analysis and report of the Assistant Director, Marketing, Chitur, to give an opportunity to the rice millers to cross examine him with regard to it". It held: "There is nothing in the remand order from which it can be said that the learned Sessions ' Judge intended the entire matter to be reopened including that of the released stocks with regard to which, according to the learned Sessions ' Judge, the matter had become final because of the view taken by him in the appeals preferred by the State that the State has no right of appeal as provided under Section 6 A of the ". The High Court upheld the contention that the State Government had no right of appeal to the Sessions ' Judge. It held that only a person aggrieved by an order of confiscation and not just anybody aggrieved by an order under Section 6 A had a right of appeal. It is, however, not necessary for us to go into this question as it has not been argued by either side. The High Court held that there could be a contravention of the Southern States (Regulation of Export of Rice) order, 1964, by the rice millers if they attempted to transport essential goods requiring permit under the Regulation Order of 1964 from the State of Andhra Pradesh to Kerala. It, however, proceeded to hold that, as it was not proved that what was being transported was "broken rice", there was no contravention. It reached this conclusion by a somewhat strange reasoning that, since the percentages of whole rice in the samples analysed were not known, it could not be held that the consignment was of a kind of rice for which any permit was required. We are constrained to observe that we are not able to follow the reasoning of the High Court that, as the definition of rice in clause 2(B), in the Regulation order of 1964, says that rice "includes broken rice and paddy", it necessarily follows that the converse must be true so 614 that "broken rice must include rice". It would have been quite correct if the High Court had said that "broken rice" is also "rice". As the definition of rice is a comprehensive one, it includes "broken rice as part of rice", But, to hold that this meant that "broken rice" must include whole rice is to accept that a part includes the whole, if the whole includes a part, it necessarily means that the part cannot possibly be equated with the whole. The natural, and, indeed, the only reasonably open logic would be: if the whole includes a part, nothing which is merely a part of the whole could be equated with the whole, we think that the High Court misdirected itself seriously by accepting an obviously fallacious reasoning on this question. The High Court said: "By merely establishing that the goods are not broken rice, no offence or contravention is committed. It must fur their be established that the goods are rice in which case only there will be contravention of the control orders as the rice millers were not exporting the goods under permits issued for export of rice. Having regard to the uncertainty as to what the balance material other than the brokens contained in the samples, it is not possible to say with any assurance that the rice millers have contravened the control orders by attempting to export rice". It went on to add: "It may be said that having regard to the circumstances of the case it is reasonable to assume that the rice millers have deliberately put some rice in the goods they were trans porting. Otherwise, normally, the price of whole rice being more, they would not have allowed it to go into the brokens, and, unless there were some substantive quantities of whole rice in the goods which the rice millers were transporting, the Inspector of Police, Vigilance Cell Civil Supplies Nellore, would not have thought of seizing the goods. It is common knowledge and judicial notice can be taken that rice or broken rice is very much costlier in Kerala State than in the Andhra Pradesh State. It is quite possible that broken rice in Kerala State was then even costlier than whole rice in Andhra Pradesh State and it may be in such circumstances the rice millers while exporting the goods allowed more whole rice to go into the brokens so that the entire thing could be sold as broken rice and even by that to get a better price than in Andhra Pradesh for the quantity of whole rice allowed into the brokens. But at the same time, in the absence of any guidelines by fixing standards for rice and broken rice it is difficult to say that the rice millers have done so with the necessary animus that in so doing they would be going outside the permits issued to them and they would be contravening the control orders. When there were no standards fixed with regard to whole rice and broken rice and when there is an admixture of both whole rice and broken rice, it is difficult 615 to say when a particular admixture can be said to be broken rice or whole rice. On an uncertain ground or on vagueness, I do not think any person can be made liable for an action which will be penal in nature". A ground given by the High Court to justify the millers ' case, that the rice was broken rice, was: "In the present case, there is also the fact that both the Assistant Grain purchasing Officer and the food inspector inspected the goods when they were loaded into the wagons and certified that the goods loaded to be broken rice. Across the Bar, Shri Babu Reddy has stated that no action was taken by the Government against those officers on the ground that colluding with the rice millers they falsely certified that goods loaded to be broken rice. He has also submitted that not only that no action was taken against them, but they were also promoted to higher posts subsequently perhaps, in usual course. Of course, there is no material before the Court with regard to it. But suffice it to say that the fact remains that those two officers certified the materials to be broken rice". A surprising conclusion of the High Court, which conflicts with the earlier conclusion that there was an attempted transport of rice which would contravene the Regulation order, was stated as follows by the High Court: "The rice millers were having the permits for exporting BROKEN RICE and they were not having any permits for exporting RICE. Even assuming that the goods which the rice millers were transporting were not broken rice, it is not enough, to prove the contravention, to show that the goods they were transporting were not broken rice. It must be proved that the goods which the rice millers were exporting were rice for which they have no permits. If the goods which the rice millers were transporting could neither be said to be broken rice nor rice, there would be no contravention in either of which case no permits will be necessary under the control orders. The consequences of the contravention of the control orders being penal in nature, the rice millers cannot be penalised by confiscating the goods on uncertain ground or vagueness. I have no doubt that the Government have failed to establish that the rice millers in attempting to export the goods in question outside the State have contravened the two control orders". We can only make the passage from the High Court 's judgment, set out above in the last paragraph, intelligible to ourselves by believing that what the High Court meant was that the control order does not make it necessary to have a permit for the transport of goods containing a mixture of broken rice and rice by requiring a permit for such a mixture. If this be the meaning, as it probably is, we think that it 616 constitutes a complete oversight or misreading of the Regulation Order 1964, clause 3 of which says: "3. Regulation of export of rice from specified areas. No person shall export or abet the export of rice from any place within a specified area to a place outside that area except under and in accordance with permit issued by the State Government or an officer authorised by that Government in this behalf". It follows that the person who transports has to prove that he has a permit for the rice he is transporting. Learned Attorney General has, very rightly, pointed out that the whole case of the respondent Millers from the outset, when they sent a reply to the show cause notice, was that they were transporting what was wholly "broken rice". In other words, their case was that they knew that they were holding the permit. They never said that they did not know what their permit meant or had misunderstood it. They did not plead that they had been cheated by somebody. Who sent something on their behalf which was not authorised by them. We think that Section 106 of the Evidence Act was clearly applicable to such a case. It says: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him". The illustrations to this section are also helpful: "(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him". So far as the actual intentions of the respondent Millers are concerned, the High Court recorded a finding, set out above, that it appeared that they had deliberately mixed whole rice with broken rice, because, unlike the situation in Andhra Pradesh, broken rice sells at a higher price in Kerala than it does in Andhra Pradesh. If this had been the correct state of affairs, it would have been reasonable for the Millers to transport broken rice to Kerala, where it fetches a higher price, and keep whole rice which sells at a higher price in Andhra Pradesh, for sale in their own State. Apart from this obvious flaw in the reasoning of the High Court, it is difficult to understand how the High Court could act on such an assumption about relative prices. It thought it could take judicial notice of such a state of prevailing prices of rice in the two States. It was certainly not a fact commonly or generally known to people that broken rice fetches a much higher price in Kerala than even whole rice. Such as assertion has to be proved to be correct. It was unreasonable to assume that, even if that was so, the millers of Andhra Pradesh would 617 be so anxious to cheat the purchasers in Kerala as to deliberately mix some whole rice with broken rice instead of selling the whole rice in Andhra Pradesh and broken rice in Kerala. The more natural inference, from patent facts, was obviously that there was some advantage in mixing some "broken rice" with "whole rice" for which the millers had no permit. Thus, the learned Judges of the High Court have themselves expressed a view indicating that the Millers were quite conscious of the distinction which existed, in accordance with the accepted practice, between what could be deemed to be "whole rice" and what could be described as "broken rice". If they were labouring under some mistake of fact and had no intention to commit an offence, which the character and circumstances of their acts suggested, the burden of proving this was certainly upon them. Again, what was covered by the permit would be deemed to be known to the Millers who were carrying on the business of exporting rice of various kinds, grades, and descriptions. It is their business to see that they carry on their trade in accordance with the terms of the permits they actually obtained. It is true that it appears, as the High Court observes, that the Millers had, apparently, been given the green signal by the officers who were expected to inspect the consignments and certify that it was "broken rice". It is difficult to know what evidence the High Court was relying upon, apart from the conditions attached to the permits and the presumption that their duties were carried out by their officers concerned, to hold what they had inspected and certified correctly. The respondents, who had objected to the first analysis report, the ground, inter alia, that the analyst did not enter the witness box could be met with a similar objection to the alleged inspection reports of some officers. The only evidence produced in the case was that of the Assistant Director of Marketing who performed the analysis in the presence of the Millers after the remand order. If the respondents were relying upon some inspection carried out by the officers in compliance with the conditions of the permit, they ought to have produced that evidence SQ that the officers concerned could have been subjected to cross examination. An opportunity had been given to the Millers to produce evidence in rebuttal. They produced none. On the other hand, the cross examination of the Assistant Director showed that the Millers were accepting the tests laid down in the Hand Book on Grading of Foodgrains and oilseeds as applicable to the descriptions of rice and broken rice. These terms, as used in the Hand book, must have been well understood by the Millers. The Foreward to the Hand Book says that it contains instructions based on practice followed in this country for many years by the Directorate of Marketing and Inspection. The Hand Book is an official publication. It could be looked into to find out the accepted practice and tests employed by the Assistant Director. As already observed, the Assistant Director was cross examined on matters contained in the Hand Book. 618 It was not suggested to him that the Hand Book did not contain correct information. At page 8 of this Hand book, we find: "Broken Rice" In addition to the classes mentioned above broken rice forms a class by itself as it is a bye product of rice milling. It has been classified into two groups, viz., fine brokens and common brokens. Fine brokens cover the brokens of long slender and scented varieties of rice and common brokens over the rest". At page 6, we find: "Brokens. Brokens shall include pieces of rice kernels which are less than 3/4th of the whole kernel. Pieces smaller than 1/4th of the kernel are to be treated as fragments". The cross examination of the Assistant Director showed that the Counsel for the Millers were fully acquainted with the contents of the Hand book and were accepting it as the basis for finding out whether the tests laid down in the Hand book had been observed. The Hand book contains several schedules. Schedule 7 gives maximum limits of tolerance for various grades of "mill rice", a term apparently used for whole rice. The maximum tolerance of brokens in whole rice of first grade is given as 3%, whereas the maximum tolerance of the brokens in the whole rice grade is 20%. Schedule VIII is for "Parboiled Milled Super fine Rice". In Schedule X, for "Parboiled, milled common rice", is shown to vary from 10% in Gr. I to 40% in Gr. Schedule 14 gives the grade designations and definitions of different qualities of "common broken rice". It shows that, in order to constitute "broken rice", the percentage of brokens, the maximum limit of tolerance is from not less than 80 to not less than 60% in grade 1 to 3. The District Judge had reached the conclusion that, quite apart from these technically prescribed tests for the purpose of grading, by the Directorate of Marketing and Inspection, the common sense test was that at least 50% must be brokens in order to constitute what could pass as a marketable consignment of "broken rice". He had also made the necessary allowances for foreign matter. We do not think that the test adopted by the District & Sessions ' Judge was either incorrect or unreasonable. Indeed, we think that the High Court was quite unjustified in interfering with this test on what seems to us like metaphysical reasoning to justify its view that, where the quantities of the whole grains and broken grains in a consignment cannot be accurately determined, the consignment should be deemed to be no longer one of rice which requires a permit. The learned Attorney General has rightly pointed out to us that at no earlier stage was it the case of the Millers that more mixture of some broken rice with some whole rice is enough to constitute the whole consignment into one of broken rice or of substance which was not "rice" at all. In our opinion, the High Court has quite erroneously held that such mixtures do not fall within the mischief provided for by the Regulation Order of 1964. An argument advanced by Mr. Sachin Chaudhari on behalf of the Millers, is that no rice in the course of Milling can really remain whole or unbroken in the sense that the whole length of it will be preserved. 619 He contended that, in that sense, every grain must be broken to some extent. If that be the correct position, we think that the test laid down in the Hand book on Grading of Foodgrains and Oilseeds, issued by the Directorate of Marketing and Inspection, compiled by the Ministry of Agriculture of the Govt. of India, is based on sound knowledge of what actually happens to grains of rice in the course of milling. Still another argument was that it is impossible to determine with the maked eye whether a grain of rice was above or below 3/4th its normal length. We think that this would not be a difficult task at all for an expert in the line as an Asstt. Director of Marketing could be deemed to be. Indeed, even with his naked eye, any person can make out, by looking at the two ends of a grain, how much of a grain of rice appears to be broken. As we know, a grain of rice is thicker in the middle and tappers at each end. It is not like a cylinder with a uniform diameter throughout. From its shape and size, it is possible, even for an ordinary careful observer, to assess the length of a broken grain as compared with its expected length had it been whole. Mr. section V. Gupte appearing for some respondents, has invited our attention to the differences, in the analysis conducted in 1971 and in 1973, between percentages of broken rice" in samples from the same stocks. The explanation of these differences according to the learned Attorney General, is indicated in the order of the High Court, dated 29th March, 1973, by which Revision petitions against remand orders were dismissed. The High Court observed: "During the pendency of these proceedings in this Court admittedly fresh samples had been taken in the presence of the parties and the rest of the grain was directed to be disposed. These fresh samples are now available for analysis, it is contended by the learned public prosector that on account of lapse of time there is the possibility of even whole rice getting broken and a larger percentage of broken rice being forged in analysing now to be done. It should be possible for the Analyst to know how long rice stay preserved as whole rice and what is the lapse of time that results in breaking up of even the whole rice and what percentage should be allowed in that connection and come to the conclusion in making analysis of the new samples taken". The High Court had said that "there should be no difficulty in getting the fresh samples taken analysed also and the analyst giving his opinion with regard to both the samples". There is not only a difference between the results of the analysis of 1971, as compared with the analysis of 1973, for which samples were taken, afresh from the same bags of rice, but we find that the report of 1973 itself shows, that, out of 50 samples taken from different bags of rice, there is a variation ranging from 12.5%, in the case of two samples from wagon No. SE 53657 to 40% in the case of the sample from wagon, No. SE 57670. The analysis of another sample from the same wagon SE 57670 gives a percentage of 36.2 of "broken rice". 620 Two samples from the same wagon WR 70715 show 22.5% and 37.5% of broken rice, thus making a difference of 15% between two samples from the same wagon. In seven samples, the percentages of broken rice were above 35%. In 16 samples, the broken rice found ranged between 30% and 35%. Of course, these different percentages may lead to the inference that some broken rice had been deliberately introduced unevenly between rice found in different bags. But, once the principle is accepted that it is only the rice not covered by the permits which, under the orders of the Court, was to be confiscated, these variations do introduce an element of difficulty in determining precisely what that amount was. 6A of the Act, however, says that the Revenue officer (who exercised the powers of the Collector), "if satisfied that there has been a contravention of the order", that is to say, the Control Order, "may order the confiscation of the essential commodities seized". It is arguable that the power is there to confiscate whatever essential commodity may have been seized for the purposes of proceeding against the person who has contravened the Control Order, yet, it cannot be denied that this power is discretionary. Therefore, we do not propose to interfere with the order of the learned Sessions ' Judge, to the effect that, as the Revenue Officer 's order releasing the seized rice to the extent of about 12% had become final, it should not be interfered with except to the extent that the learned Sessions ' Judge added 2% more for foreign matter. Thereby releasing slightly more in favour of the respondents. For the reasons given above, we allow these appeals and set aside the judgment and orders of the High Court and restore those of the learned Sessions ' Judge in the cases before us. M.R. Appeals allowed.

The Joint Director of Food stationed in the Port of Visakapatnam sold food grains and fertilizers to the Andhra Pradesh State and other States at the price fixed by the Central Government. The Sales Tax Officer of the Andhra Pradesh imposed the tax under the Andhra Pradesh General Sales Tax Act, 1957, on the intra State sales and imposed tax under on the inter State sales. The Joint Director of Food claimed immunity from the tax on the ground that the element of profit motive was absent. Under the Andhra Pradesh Act, the profit motive is irrelevant. The High Court of Andhra Pradesh, therefore, dismissed the appeals filed by the Central Government as far as they related to the tax under the Andhra Pradesh Act. The High Court, however, remanded the three appeals which per tained to the tax under the for deter mining the presence of profit motive in the Central Govern ment while undertaking the dealings in question. In appeals by Special Leave the appellant contend ed: 1. Since the sales were by the Central Govern ment, the Joint Director could not be the assessee. Section 2(b) of the Central Act read with section 9 excludes the Central Government as an exigible entity. An undertaking to distribute essential com modities by the State in implementation of its governmental obligations cannot be described as trading activity or carrying on of business without doing violence to the concepts of governmental functions and business operations. Dismissing the appeal, HELD: (1) Since the Joint Director represented the Central Government in the sales he can legitimately be dealt with for sales tax proceedings as representing the Union Government. [61 C] (2) Section 2(b). of the Central Act in terms states that a dealer means any person who carries on the business of buying and selling goods and includes a Government which carries on such business. [61 F] (3) Section 9(3) of the Central Act provides that the tax and penalty collected shall be assigned to the State which recovers the tax. Therefore, the real beneficiary of the Central Act i.s the State concerned. In any event there is no flaw in the reasoning of the High Court that the Central Government way tax itself. [62 A B] (4) The State has the power to carry on the trade or business as is manifest from article 19(6)(ii) and other provi sions. Systematic activity of buying foodgrains and ferti lizers and selling them by the State although in fulfilment of the beneficiant national policy is never the. less trade or business. Necessarily Government may become a dealer which carries on business within the meaning of the different definitions in one Central Act and the State Act. [62 B E] (5) The question of profit motive is relevant for the purpose of Central Act. Since the question has not been investigated by the fact finding authorities, the High court has rightly directed the authorities below to go into the said question. So far as the Andhra Act is concerned since the profit motive is 60 irrelevant because of the special definition in the Act the State Sales Tax Officer is entitled to collect sales tax from appellant in regard to intra State sales even assuming that there is no profit motive. [62 E H] (6) The Court observed that it is conscious of the social implications of the Sales Tax being leviable on the essential commodities like foodgrains and fertilizers. Any tax on food and fertilizers is bound to cause an extra burden on the poor who are the ultimate consumers but the court has to interpret the law and apply it. Necessary objective can be achieved by appropriate notifications or if need be, necessary legislative directions. [63 A B]

ivil Appeal No. 1375 of 1974 605 From the Judgment and Order dated 21.2. 1971 of the Allahabad High Court in Excise Profit Tax Reference No. 55 of 1968. Dr. V. Gauri Shankar and Miss A. Subhashini for the Appellant. S.T. Desai, Harish Salve, Mrs. A.K. Verma and D.N. Mishra for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This appeal is directed against the judgment and order of the High Court of Allahabad dated 21st February 1971. It relates to the assessment under the Excess Profits Tax Act, 1940 (hereinafter called the 'Act '). The assessee was an unregistered firm carrying on business of manufacture and sale of katechu. The chargeable account ing period was 1 4 1943 to 31.3. There were two partners of the assessee firm, namely, L. Phoolchand and M/s Biharilal Balkishan each having profits in proportion of 11 annas and 5 annas respectively. The work in connection with the extraction of Katechu was carried on in Nepal by 1. Phoolchand and the sale of Katechu were effected by M/s Biharilal Balkishan at their shops in Kanpur. The assessee firm did not maintain any books of account and the entire record of the business transaction was maintained in the books of M/s Biharilal Balkishan in the account styled "Kalyanmal Phoolchand". The assessee firm had taken a jungle on lease for this purpose and had extracted Katechu from October, 1940 to September, 1941. The sales of katechu extracted were effect ed from 30th May, 1941 to 29th September, 1941. Thereafter another jungle was taken on lease in November, 1942 and Katechu were extracted from 23rd November, 1942 to 6th November, 1944. The sales in this case were effected between 26th July, 1943 to 4th April, 1944. The High Court divided the entire period of manufacture and sale as follows: 1. October 28, 1940 to March 31, 1941, failing in the financial year ending March 31,1941. Katechu was manufac tured but there was no sale. April 1, 1941 to September 29, 1941, failing in the financial year ending March 31, 1942. Sales took place from May 30, 1941 to September 29, 1941. 606 3. November 23, 1942 to March 31, 1943, falling in the financial year ending March 31, 1943. Katechu was manufac tured but there was no sale. April 1, 1943 to March 31, 1944, falling in the finan cial year ending March 31, 1944, sales took place from July 26, 1943 to March 31, 1944. April 1, 1944 to April 4, 1944, falling in the finan cial year ending March 31. 1945, sales were effected from April 1, 1944 to April 4, 1944, when the business was dis continued. Therefore, while there was manufacturing activity there was no sale during the financial years ending 31st March, 1941 and 31st March, 1943. The dispute in this case is with regard to the set off of deficiency of profit relating to the periods 20th October, 1940 to 17th October, 1941 and 23rd November, 1942 to 31st March, 1943. The Excess Profit Tax Officer did not set off the said deficiency of profits that accrued in respect of the period 1940 41 out of the profits for the chargeable accounting period from 1.4.1943 to 31.3. The submission of the assessee was that the business carried on during the charge able accounting period under consideration was not separate to and distinct from the business carried on in 1940 41. The Excess Profit Tax Officer held that business carried on during October, 1940 to October, 2941 was completely differ ent from the business carried on during the chargeable accounting period under consideration. The Appellate Assistant Commissioner on appeal found that the constitution of the firm during the chargeable accounting period was the same as in 1940 41 and the ac counts were maintained in the same fashion; and that the same business of manufacturing Katechu in Nepal and selling the finished products at kanpur was carried on. The Appel late Assistant Commissioner, therefore, held that the asses see was entitled to set off in respect of the deficiency of profits accruing in the year 1940 41. The Appellate Assist ant Commissioner further found that the assessee had effect ed sales only during 30th May, 1941 to 29th September, 1941. As such there were no sales either during or until 30th May, 1941 land subsequent to 29th September, 1941. As such he held that there was no profit arising during the accounting period ending on 31st March, 1941. He, therefore, confirmed that there were no profits and losses during the chargeable accounting 607 period ending on 31st March, 1941 and as such there could be no deficiency of profits. In the premises, according to the Appellate Assistant Commissioner, the assessee was entitled to a set off of the deficiency only for the chargeable accounting period ending on 31st March, 1942 which consisted of the period 1st April, 1941 to 29th September. He allowed such deficiency of Rs.5,600 only. So far as the deficiency pertaining to the period November, 1942 to 3 Ist March, 1943 was concerned, the facts were that the manufac turing operations started in Nepal on or about 23rd Novem ber, 1942 and the sales of Katechu started at Kanpur on 26th July, 1943 Katechu produced in Nepal from 23rd November, 1942 to 31st March, 1943 remained in stock till the last date of the chargeable accounting period namely 31st March, 1943 and no part of it was sold. As the assessee did not maintain any books of account, the provisions of section 13 of the Income Tax Act, 1922 as applied to the Act vide section 21 of the Act were applicable. The revenue, there fore, valued the stock in trade at cost and held that there could be no profit or loss during the chargeable accounting period. In appeal, the assessee had urged that deficiency in profits pertaining to the chargeable accounting periods from October, 1940 to 31st March, 1941 and 23rd November, 1942 to 31st March, 1943 should be allowed a set off in computing the excess profits for the year under consideration. It was submitted that there was no profits pertaining to the said chargeable accounting period, and therefore, the standard profits as provided in the Act became the deficiency of the said two chargeable accounting periods which should have been allowed set off. It was further urged on behalf of the assessee that the manufacturing operations were carried on during the said periods and as such it could not be said that the assessee did not carry on any business. The Tribunal, however, held that no profits accrued unless sale was effected and, therefore, there was no merit in the submission made on behalf of the assessee that during the said two chargeable accounting periods, although there were no sales effected, yet profits accrued to the assessee. It was urged on behalf of the revenue that as provided in the Act, the provisions of the Act would apply to every business of which any part of profits was made during the chargeable accounting period, is chargeable to income tax. It was further urged that no part of profits, if any, which accrued during the said two chargeable accounting periods could be charged and were in fact not so charged, to income tax, as no sales were effected and, therefore, the Act itself did not apply to the said two chargeable account ing periods. The Tribunal accepted this contention on behalf of the revenue and as 608 such confirmed the order of the Appellate Assistant Commis sioner. On the said facts, the following question of law was referred to the High Court at the instance of the assessee: "Whether, on the facts and in the circum stances of the case, the assessee was entitled to a set off of deficiency of profits relating to the period 28.10.1940 to 31.3.1941 and 23.11. 1942 to 31.3.1943 from the profits of the chargeable accounting period 1.4.1943 to 31.3.1944 in accordance with the provisions of the E.P.T. Act, 1940?" The High Court held that it was not disputed before them that the assessee was carrying on the same business from 28th October, 1940 to 4th April, 1944 for the purpose of the Act. The only question was whether the assessee could be said to have suffered any deficiency of profits during the period 28th October, 1940 to 31st March, 1941 and 23rd November, 1942 to 31st March, 1943 and was whether entitled to be given the benefit of such deficiency. of profit. The High Court referred to certain definitions and recognised and in our opinion rightly that there were sever al stages in business activities before profits could be realised. The High Court observed that profits realised were not of the sale alone. The profits were attributable to the manufacturing operations as well. The High Court referred to certain decisions to which our attention was also drawn where under the Act as to the place where the profits arose, the courts had enquired into the place where the manufactur ing took place and where the sales took place. This conten tion is no longer relevant for the controversy before us. It was accepted before us that a manufacturing process may begin in one year and result in sale in another year and also that manufacturing process may take at one place and sale at another place. For the purpose of computing the profit of certain operation, it is true as the High Court noted, that manufacture and sale might take place in two different years. The High Court held that though chargeable levy was an annual charge and generally for the purpose of the levy of the annual charge the profits of the year preceding the year of charge are taken into consideration if the manufacturing activity leading to the production of finished article which was subsequently sold contributed to the profits realised, according to the High Court, it mattered little whether or not the manufacturing activity of the sale related to the same period of 609 twelve months. Some part of the profits realised would be attributable to the manufacturing activities and, therefore, could be said to arise during the period when manufacturing was carried on even though sales were effected in the next year. The High Court, therefore, was of the view that it was necessary to ,determine what part of the profits realised upon the sales from 30th May, 1941 to 29th September, 1941 could be attributed to the manufacturing activity between 28th OCtober, 1940 to March, 1941 and then to compute the deficiency of profits for the chargeable accounting period ending 31st March, 1941. That might require, according to the High Court, a fresh determination of the profits earned during the period 1st April, 1941 to 29th September, 1941 and, consequently, of the deficiency of profits during the chargeable accounting period ending 31st March, 1942. The High Court was of the view that the deficiency of profits for the chargeable accounting periods ending 31st March, 1941 and 31st March, 1942 would have to be set off when computing the excess profits for the relevant chargeable accounting period ending 31st March, 1944. The High Court expressed the view that under section 2(5) of the Act the job of the assessee in the extraction and sale of Katechu under the two jungle leases must be considered as a single business for the purpose of the Act. The High Court, there fore, came to the conclusion that upon the principle of apportionment of profits to which it had adverted to, the profits earned upon sales effected during the chargeable accounting period ending 31st March, 1944 must similarly be apportioned between the manufacturing activity during the chargeable accounting period ending 31st March, 1943 and the sales during the chargeable accounting period ending 31st March, 1944 and the deficiency of profits worked out on that basis in respect of the chargeable accounting period ending 3 Ist March, 1943 must be set off in computing the excess profits for the chargeable accounting period ending 31st March, 1944. The High Court, therefore, did not accept the opinion of the Tribunal that because the chargeable account ing periods ending 31st March, 1941 and 31st March, 1943 were occupied with manufacturing activity alone and there were no sales, therefore, no part of the profits realised upon the sales could be apportioned to those chargeable accounting periods and consequently that it could not be said that there was any deficiency of profits during those periods. The question referred to the High Court was an swered in affirmative. In order to appreciate the real controversy in this matter, it is appropriate to refer to the observations of Kania, J., as the Chief Justice then was, in the decision in the case of Commissioner of Income 610 Tax, Bombay vs Raipur Manufacturing Co., Ltd.; at 733. It was observed as follows: "The Excess Profits Tax Act as shown by the preamble itself is a legislation to impose tax on excess profits arising out of certain business. The Income tax Act is the principal legislation which imposes a tax on the income of a person. Section 6 divides the income under five heads which are chargeable to tax. The fourth head is profits and gains of busi ness, profession or vocation. Out of that a certain portion is carved out by the Legisla ture for the purpose of imposing the excess profits tax. I am unable to accept the conten tion of the Commissioner that the Excess Profits Tax Act is an entirety independent legislation, which is connected with the Income tax. Act only to the extent it is expressly so stated in the Excess Profits Tax ' Act. The scheme that the Excess Profits Tax Act is a legislation intended to tax the profits of certain business in excess of a certain limit as provided in that Act. It is therefore complementary to the Income tax Act by its very nature." As the Statement of Objects of the Act stated that the outbreak of war, while it has necessitated greatly increased expenditure by the Government on defence and other services, has simultaneously created opportunities for the earning by companies and persons engaged in business of abnormally large profits. The object of the Bill (which later became the Act was to secure for the Government a considerable portion of the additional business profits which accrued as a result of the conditions prevailing during the war. To begin with the right to impose a tax of 50% of the excess of the profit made in any accounting period after the 1st day of April, 1939 was given. It had subsequently been increased to 66 2/3 %. Section 2(1) of the Act defines the 'accounting period '. Section 2(6) defines 'chargeable accounting period as (a) any accounting period falling wholly within the term begin ning on the 1st day of September, 1939, and ending on the 31st day of March, 1946 and (b) where any accounting period falls partly within and partly without the said term, such part of that accounting period as fails within the said term. The 'standard profits ' is defined under section 2(2) which was required to be computed in accordance with the provisions of section 6 of the Act. It is not necessary in view of the controversy before us to refer to other defini tions except that section 2(3) deals with 'average 611 amount of capital ' which is relevant for computation of the excess profits. Section 6 defines the 'standard profits ' and how it is to be computed. As there was no controversy on this aspect before us, it is not necessary to deal with it. Section 2(9) defines 'deficiency of profits ' as follows: (9) "deficiency of profits" means "(i) where profits have been made in any chargeable accounting period, the amount by which such profits fall short of the stand ard profits; (ii) where a loss has been made in any charge able accounting period, the amount of the loss added to the amount of the standard profits;" Section 4 defines 'charge of tax ' as follows: "Charge of tax" ( 1 ) Subject to the provi sions of this Act, there shall in respect of any business to which this Act applies, be charged, levied and paid on the amount by which the profits during any chargeable ac counting period exceed the standard profits a tax (in this Act referred to as "excess prof its tax") which shall, in respect of any chargeable accounting period ending on or before the 31st day of March, 1941, be equal to fifty per cent, of that excess and shall, in respect of any chargeable accounting period beginning after that date, be equal to such percentage of that excess as may be fixed by the annual Finance Act; Provided that any profits which are, under the provisions of sub section (3) of section 4 of the Indian Incometax Act, 1922, exempt from income tax, and all profits from any business of life insurance shall be total ly exempt from excess profits tax under this Act. Provided further that in the. case of any business which includes the mining of any mineral, any bonus paid by or through the Central Government in. respect of increased out put of the mineral shall be totally exempt from excess profits tax under this Act. (2)Where a chargeable accounting period falls partly 612 before and partly after the end of March, 1941, the foregoing provisions of this section shall apply as if so much of that chargeable accounting period as falls before, and so much of that chargeable accounting period as falls after, the said end of March were each a separate chargeable accounting period, and as if the excess of profits of that separate chargeable accounting period were an appor tioned part of the excess of profits arising in the whole period determined in accordance with the provisions of section 7A." Section 7 deals with the relief on occurrence of defi ciency of profits and provides in substance that where a deficiency of profits occurs in any chargeable accounting period in any business, the profits of the business charge able with excess profits tax shall be deemed to be reduced and relief shall be granted according to the provisions laid down therein. The main question in this case is to keep the distinc tion between 'accounting period ' and 'chargeable accounting period '. The accounting period, it has to be borne in mind, is the twelve months ' proceeding just on the basis of the income tax year and the assessment must be made on the same basis. The 'chargeable accounting period ' is the period beginning from 1st September, 1939 ending after amendment on 31st March, 1946. So if there is any deficiency of profits in any of the accounting period which has not been absolved in the assessment for that year may be carried forward but the assessment must be made on the basis of the accounting period. This has to be emphasised and it must be borne in mind that though it is wholly immaterial whether the manu facture and sale took place in the same year or in two different years, the division of time into periods for its assessment must be made in a real sense as in the income tax one, and then make appropriate adjustments. Therefore the profits and losses of each year must be computed on yearly basis in terms of the definition of 'accounting period ' under section 2(1) of the Act. But if any deficiency of profits remains unabsolved, it may be carried forward against any excess profits made and set off during the next accounting period. The chargeable accounting period is the period from 1st September, 1939 to 31st March, 1946. But each year 's excess profit & loss must be computed in the manner contemplated in section 2(1) of the Act. So if there was any deficiency of profits in any particular period, it must be determined on that basis. In order to work out the scheme of the Act, there must be proper devetailing of the concept of "accounting period", 613 "chargeable accounting period" and basic scheme of the Income Tax Act bearing in mind that excess profits are excess of profits which were intended to be mopped up during the war period intended to be taxed separately and differ ently. This view finds support in the decision of the Alla habad High Court. In the case of Haji Rahmat Ullah and Co. vs Commissioner of Income tax, U.P., the High Court of Allahabad held that a payment received in any year subsequently to a chargeable accounting period is not liable to be treated as the profits of that period, merely because the work which occasioned that payment was done during that period. The "profits during the chargeable accounting peri od" are those profits respecting which a right to receive had accrued or arisen during that period. If the right to receive those profits had accrued or arisen subsequently, then even though they had accrued or arisen by reason of work done during the chargeable accounting period, these were not liable to be treated as the profits of that charge able accounting period. The High Court observed that it would seem ex facie that if the profits earned during a certain period are taxable under the Income tax Act, it is a part of those very profits which is liable to excess profits tax. Whether the profits in the one case could be identified with the profits in the other would be determined by refer ence to the period in which those accrued or arose. It was emphasised that the profits during the chargeable accounting period must be computed under the Excess Profits Tax on the same basis as are profits for an income tax assessment. It is clear that excess profits tax is attracted in respect of a business to which the Act applied when the profits during the chargeable accounting period exceed the standard profit. It has to be clearly borne in mind that the Act is not an entirely different Act in the sense that it proceeds upon the concept completely different from the notions of Income tax and has its source in an entirely different tax concept. More profits which were likely to have been earned during those years, these were made subject to excess profits. It appears to us that the period of assessment in the Act is an "accounting period" in the same way as the 'previ ous year ' is the period of assessment for the purpose of Income Tax. Though profit in a composite transaction could be apportioned as between manufacture and sale in the same accounting year, such an apportionment is not permissible when one part of the transaction, i.e. manufacture, fails in one chargeable accounting period and falls in another part of the accounting period i.e. the trading operations, i.e. falls in another accounting period, then set off of defi ciency in profits under section 7 of the Act is permitted but a necessary precondition was that profit 614 must be made in the accounting period to which the deficien cy relates. The profits attributed on apportionment was outside the scope of section 7 of the Act. It must be remem bered that the 'excess profit ' under the Act is profit determined under the Income Tax Act subject to prescribed adjustments. If the income tax assessment discloses nil profits, no separate profit can be determined independently under the Act. The position of the Excess Profits Tax Act was explained by Lord President Clyde in Edward Collins & Sons. Ltd. vs The Commissioner of Inland Revenue, at 780 where the Lord President emphasised that subject to certain modi fication those profits had to be determined in the same way and on the same principle as a trader 's profits and gains have to be computed for the purposes of the Incometax Act. It is a general principle, in the computation of the annual profits of a trade or business under the Income Tax Acts, that those elements of profit or gain, and those only, enter into the computation which are earned or ascertained in the year to which the enquiry refers; and in like manner, only those elements of loss or expense enter into the computation which are suffered or incurred during that year. The same principle, in our opinion, would be applicable to the facts of this case. The decision of this Court in Commissioner of Income tax, Bombay vs Ahmedbhai Umarbhai & Co., Bombay, 18 I.T.R. 472 related entirely to a different context where certain part of the activities occurred at Raichur and the sales took place in Bombay, the question was whether the activity which the assessee carried on at Raichur was part of their business within the meaning of the third proviso to section 5 of the Act, that the profits of a part of the business, the manufacturing of oil in their mills at Raichur, accused or arose at Raichur and that such profits were not assessa ble to excess profits tax under the third proviso to Section 5 of the Act. That is not the controversy here.controversy is not so much where the profits arose nor is the controver sy whether the profits arose during the chargeable account ing period but where the profits arose during the 'account ing period ' and as such whether the deficiency of the prof its not arising during 'counting period ' but during the 'chargeable accounting period ' could be set off without computation. The method of computation under section 7 of the Act must be on the basis of 'accounting period ' and after that the deficiency in profits for that period should be computed on that basis and after set off carried forward to be set off during the chargeable accounting period. It is thus an harmonious construction of 615 the different provisions of the Act is possible and the true excess profits, if any, as contemplated by the Act be deter mined. The concept of 'accounting period ' in the background of the 'chargeable accounting period ' can thus be harmo nised. The accounting period was 1st April, 1943 to 31st March, 1944. In the facts of the case we are of the opinion that the question must be answered in the negative and in favour of the revenue. The appeal is allowed and the judg ment and order of the High Court are set aside. In the facts and circumstances of the case, parties will pay and bear their own costs. A.P.J. Appeal allowed.

Rule 51(A) of Chapter XIV(A) of the Kerala Education Rules provided that qualified teachers who are relieved as per Rules 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Education Agency. A Note was appended to this Rule on 4.7.1972 which provided that if there are more than one claimant under this Rule the order of the preference shall be according to the date of first appoint ment. If the date of first appointment is the same, then preference shall be decided with reference to age, the older being given the first preference. In making such appoint ment, due regard should be given to requirement of subjects and to the instructions issued by the Director under sub Rule(4) of Rule 1 as far as High Schools are concerned. The appellant, who was duly qualified, was appointed as a teacher in a temporary vacancy in the school of the first respondent from 13.1.1970 and her appointment was approved by the District Educational Officer, the second respondent. On the vacancy being ceased to exist she went out of job on 16.3.1970. She again worked in a further vacancy from 22.8.70 to 17.12.1970. She went out of service when this vacancy ceased. Respondent No. 4, another teacher, worked in the same school in another leave vacancy from 1.9.1970 to 26.11.1970. In the academic year 1971 72 a permanent vacancy arose for Social Studies. The appellant being a Social Studies teacher made a representation claiming appointment against that vacancy. But the first 437 respondent appointed the 4th respondent. On a complaint being made by the appellant, the second respondent found the appointment of the 4th respondent irregular and held that the legitimate claimant for the permanent post was the appellant and, therefore, did not approve the appointment of the 4th respondent. The Regional Deputy Director of Public Instructions, respondent No. 3, allowed the appeal of the management. The appellant filed a petition under Article 226 challenging the validity of the order passed by the third respondent, inter alia, contending that she had a preferen tial claim and that the appointment of the 4th respondent was illegal. A Single Judge dismissed the petition on the ground that Rule 51(A) conferred a right on the appellant for appointment in the future vacancies in the school and it did not restrict the right of the management to make his own choice among the thrown out teachers. The Division Bench also dismissed the appeal preferred by the appellant. On the question whether a teacher who had worked in a vacancy earlier has preferential right over a teacher who worked later in the same school, allowing the appeal, HELD: l. Rule 51(A) of Chapter XIV(A) of the Kerala Education Rules does not mandate that the one who worked earlier should be preferred to the one who worked later. [441B] 2.1 Although a Note to a Rule does not have any bind ing effect, it does indeed have a persuasive force. [441E] 2.2 It cannot be ignored that the Note has come as an appendage to Rule 51(A) for qualificatory purposes though it does not form a part of the Rule. [441F] 3. The preference in Rule 51(A) should be based on priority of title. [442G] 4. The High Court while interpreting Rule 51(A) was influenced more by the words in the abstract contained in the Rule and not fairness behind the Rule. The interpreta tion given by the High Court to this Rule can result in abuse of discretionary power with the management. If the Government wanted to clothe the Manager with the power to choose among rival contendors to a future vacancy, the Rule should be suitably amended. [443C D] 438 5. The Rule as it stands clearly confers priority to the earlier appointee. The appellant, therefore, is entitled to succeed. The appellant will be entitled to all the benefits as though she was appointed when the vacancy in question arose. However, this will not enable her to draw salary for the period she had not worked but only other benefits such as seniority, increments etc. [443D F]

Civil Appeal No. 95 of 1964. Appeal from the judgment and order dated April 14, 1961 of the Punjab High Court in Income tax Reference No. 23 of 1958. section T. Desai, R. Ganapathy Iyer, Gopal Singh, B.R.G.K. Achar and R. N. Sachthey, for the appellant. A. V. Viswanatha Sastri, T. A. Ramachandran, O. C. Mathur for the respondent. The Judgment of the Court was delivered by Shah, J. Hakam Mal Tani Mal a Hindu undivided family was assessed to tax under the Indian Income tax Act, 1918, in respect of income from business, inter alia, in timber at Abdullapur. In 1934 there was a partition of the Hindu undivided family, and five members of that family entered into a partnership to carry on in the name of M/s Hakam Mal Tani Mal the business which was originally carried on by the undivided family. Accounts of this firm were settled till March 31, 1939, and the firm was dissolved. The timber business of the firm was taken over by two partners of the firm Gajjan Mal and Jodha Mal, who entered into an agreement of partnership to carry on the business in the name of R. B. Jodha Mal Kuthiala hereinafter called 'assessee '. An instrument of partnership recording the terms of the partnership and reciting the dissolution of the earlier partnership was executed on June 29, 1939. The assessee was dissolved in March 1943. In assessment proceedings for 1943 44 the assessee contended that the firm Messrs Hakam Mal Tani Mal was dissolved on March 31, 1939, before the Income tax (Amendment) Act 7 of 1939 had come into force and the first succession to the business after April 1, 1939 was in March 1943, when the assessee was dissolved and on that account the assessee was entitled to relief under section 25(3), or in the alternative under section 25(4) of the Indian Income tax Act, 1922. The Income tax Officer completed the assessment without giving to the assessee the benefit of sub sections (3) or (4) of section 25 of the Indian Income tax Act, 1922. The Appel 647 late Assistant Commissioner confirmed the order holding that succession to the family firm Messrs. Hakam Mal Tani Mal took place on April 1, 1939, and that firm alone was entitled to relief under section 25(4) and to the second succession which took place on April 1, 1943, after Act 7 of 1939 was brought into force relief under section 25(4) was not admissible. The Income tax Appellate Tribunal agreed with the view of the Appellate Assistant Commissioner. Thereafter as directed by the High Court of Punjab under section 66(2) of the Indian Income tax Act, 1922, the Tribunal drew up a statement of the case and submitted the following ques tion of law for the opinion of the High Court : "Whether in the facts and the circumstances of the case, the Tribunal is correct in law in holding that the assessee firm (R. B. Jodha Mal Kuthiala, Abdullapur Depot, Simla) was not entitled to the benefit provided in Section 25 (3) or 25 (4) of the Income tax Act, in relation to the assessment in question ?" The High Court held that the assessee was carrying on business when Act 7 of 1939 was brought into operation and was on that account entitled to the benefit of section 25 (4) of the Act. With certificate granted by the High Court, this appeal has been preferred. Sub section (4) was inserted in section 25 of the Indian Incometax Act, 1922, by the Income tax (Amendment) Act 7 of 1939. It provides : "Where the person who was at the commencement of the Indian Income tax (Amendment) Act, 1939 (VII of 1939), carrying on any business, profession or vocation on which tax was at any time charged under the provisions of the Indian Income tax Act, 1918, is succeeded in such capacity by another person, the change not being merely a change "in the constitution of a partnership, no tax shall be payable by the first mentioned person in respect of the income, profits and gains of the period between the end of the previous year and the date of such succession, and such person may further claim that the income, profits and gains of the previous year shall be deemed to have been the in come, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said 648 period, and, if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be given of the difference : Provided. . . There is no dispute that the Hindu undivided family of Hakam Mal Tani Mal was taxed under the Indian Income tax Act, 1918, in respect of the, timber business and Messrs. Hakam Mal, Tani Mal succeeded to that business in 1934. Accounts of Messrs. Hakam Mal Tani Mal were settled on March 31, 1939, and the business in timber which was carried on by that firm was taken over by the assessee. The departmental authorities held that the assessee was at the commencement of the Indian Incometax (Amendment) Act 7 of 1939 not carrying on business, and that it succeeded to the business on April 1, 1943. The High Court disagreed with that view and opined that the assessee was at the commencement of Act 7 of 1939 carrying on business, and correctness of that opinion is challenged in this appeal. The Indian Income tax (Amendment) Act 7 of 1939 was brought into force on April 1, 1939. Section 5 (3) of the General Clauses Act 10 of 1897 provides that unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. Act 7 of 1939 must therefore be deemed to have come into operation at a point of time immediately on the expiration of March 31, 1939. The assessee contends, and the contention has found favour with the High Court, that the assessee was carrying on business at the commencement of the Indian Income tax (Amendment) Act 7 of 1939. In support of the plea of the assessee reliance was placed only upon the instrument of partnership which was executed on June 29, 1939. The question in dispute must, therefore, be determined on a true interpretation of the terms of the instrument of partnership. Insofar as it is material, the instrument recites : "We, R. B. Jodha Mal Kuthiala son of Lala Gopi Mal Sahib Sud of the one part and Gajjan Mal Kuthiala son of Lala Hakam Mal Sahib Sud Kuthiala of the other part, residents of Haroli, District Hoshiarpur. and presently of Simla. 649 Whereas we, the deponents, were partners and shareholders in the firm of Lala Hakam Mal Tani Mal Simla and all the partners of firm Lala Hakam Mal Tani Mal understood and settled their accounts upto the 31st of March 1939, on the 31st of March, 1939, and all the partners have become separate from the 1st of April, 1939, and the business at Abdullapur in the name of firm Hakam Mal Tani Mal and R. B. Jodha Mal Kuthiala has fallen to our share to run which we have by means of an oral agreement constituted a separate partnership styled R. B. Jodha Mal Kuthiala,, Abdullapur from the 1st of April, 1939. Now the said oral (agreement) is being reduced to writing and we agree that :" The instrument of partnership in the first instance recites that the accounts of Messrs. Hakam Mal Tani Mal were settled on March 31, 1939 and upto March 31, 1939. It is then recited that all the partners had become separate from April 1, 1939. This is an ambiguous recital : it may mean that the dissolution had taken place on April 1, 1939 i.e., the business had continued for the whole or a part of the day on April 1, 1939, or it may mean that from the end of March 31, 1939, there had been separation. When a deed recites that a transaction is effective from a particular date it has to be determined in the context in which that expression occurs, whether the date mentioned has to be excluded or to be included. The recitals in the instrument that the accounts were settled upto March 31, 1939, and that the partners had become separate, would imply that the firm of Messrs Hakam Mal Tani Mal did not do business after March 31, 1939. no date of the oral agreement constituting a separate partnership of the assessee is not set out in the instrument, and there is no other evidence in that behalf. But the assessee was constituted to carry on the timber business allotted to it at the time of dissolution from April 1, 1939. The timber business was an old and a running business, and an intention to maintain continuity of the business and its transactions may reasonably be attributed to the assessee. It must therefore be held that the assessee commenced doing business immediately after the dissolution of the firm Messrs Hakam Mal Tani Mal become effective. In the absence of other evidence, it may be held that the business of Messrs. Hakam Mal Tani Mal continued till the midnight of March 31, 1939, and immediately thereafter the business of the assessee commenced. 650 The partnership therefore came into being at the precise point of time at which the Indian Income tax (Amendment) Act 7 of 1939 came into force and it could not be said that the assessee was not carrying on business at the commencement of the Indian Income tax (Amendment) Act 7 of 1939. The High Court was, therefore, in our judgment, right in holding that the assessee was entitled on the dissolution of that firm in March 1943 to the benefit of section 25(4) of the Indian Income tax Act. The appeal fails and is dismissed with costs. Appeal dismissed.

A Hindu undivided family was assessed to tax under the Indian Income tax Art 1918 in respect of its business, inter alia, in timber. In 1934 there was dissolution of the family and five of its members entered into a partnership to carry on the business. Ibis firm was dissolved on March 31, 1939 and its accounts were settled on and up to that date. The timber business of the dissolved firm was taken over by the assessee firm. An instrument of partnerhip for the new firm was drawn up on June 29, 1939 in which the facts relating to the dissolution of the earlier firm were also recited. The new firm the assessee was also dissolved in March 1943. In assessment proceedings for 1943 44 the assessee claimed benefit under section 25(3) or in the alternative section 25(4) of the Indian Income tax Act, 1922. The claim was rejected by the assessing and appellate authorities but in reference, the High Court allowed the claim under section 25(4). The Commissioner of Income tax, with certificate, appealed to the Supreme Court. The material question for determination was whether the assessee was carrying on business at the commencement of Act 7 of 1939 so as to be entitled to the benefit under section 25(4). HELD: The Indian Income tax (Amendment) Act 7 of 1939 was brought into force on April 1. 1939. Section 5(3) of the General Clauses Act (10 of 1897) provides that unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into being on the expiration of the day preceding its commencement. Act 7 of 1939 must therefore be deemed to have come into operation at a point of time immediately on the expiration of March 31, 1939. [648 D E] Whether the assessee was carrying on business at the point of time which Act 7 of 1939 came into force had to be decided from the recitals in the partnership deed executed by the respondents on June 29, 1939. The recitals in the instrument that the accounts were settled up to March 31, 1939 and that the erstwhile partners had become separate would imply that the firm formed in 1934 did not do business after March 31, 1939, the assessee was constituted to carry on the timber business allotted to it at the time of dissolution from April 1, 1939. The timber business was an old and running business and an intention to maintain continuity of the business and its transactions may reasonably be attributed to the assessee. It must therefore be held that the assessee commenced doing business immediately after the dissolution of the firm of 1934 become effective. The business of that firm continued up to the midnight of March 31, 1939, and immediately thereafter the business of the assessee commenced. [649 E H; 650 A] 646 The new partnership therefore came into being at the precise period of time at which Act 7 of 1939 came into force and it could not be said that the assessee was not carrying on business at the commencement of the Act. The High Court was therefore right in holding that the assessee was entitled on the dissolution of the firm in March 1943 to the benefit of section 25(4) of the Indian Income tax Act, 1922.

titions Nos. 133, 165, 169 172, 185, 218, 219, 227, 228, 230,239, 252, 253, 248 and 249 1968. Petition under article 32 of the Constitution of India for the enforcement of the fundamental rights. S.V. Gupte, S.K. Mehta and K.L. Mehta, for the petitioners (in W.P. No. 133 of 1968). C.D. Garg, S.K. Mehta and K.L. Mehta, for the petitioners (in W.P. No. 165 of 1968). Harder Singh, for the petitioners (in W.Ps. Nos. 169 and 170 of 1968). V.C. Mahajan, S.K. Mehta and K.L. Mehta, for the petitioners (in W.Ps. 171,172, 218, 219, 227, 228, 230, 239, 248, 249, 252 and 253 of 1968). M.C. Chagla, A.N. Sinha and B.P. Jha, for the petitioners (in W.P. No. 185 of 1968). Niren De, Solicitor General, O.P. Malhotra and R.N. Sachthey, for the respondents (in W.P. Nos. 133 and 165 of 1968). A nand Saroop, Advocate General for the State of Haryana and R.N. Sachthey, for the respondents (in W.P. Nos. 218, 219, 227 & 228 of 1968). O.P. Malhotra and R.N. Sachthey, for the respondents (in W.P. Nos. 169 to 172 of 1968). R.N. Sachthey,, for the respondents (in W.P. Nos. 185, 230, 239, 248, 249, 252 and 253 of 1968). B. Datta and P.C. Bharatari, for the interveners (in W.P. No. 165 of 1968). 546 The Judgment of the Court was delivered by Hidayatullah, C.J. These are 17 petitions challenging the validity of the Punjab General Sales Tax (Amendment and Validation) Act, 1967 (Act No. 7 of 1967) by the Punjab Legislature and the Punjab Sales Tax (Haryana Amendment and Validation)Act, 1967. Thirteen of these petitions challenge the Punjab Amendment Act and four challenge the Haryana Amendment Act. The petitioners are firms or companies dealing in cotton or oil seeds. Their business is to purchase ginned and unginned cotton for manufacturing yarn and selling the said cotton also to registered and unregistered dealers both inside and outside the State. The petitioners of the second category purchase oil seeds for use in manufacture of edible oils. The surplus oil seeds are sold to other dealers, registered or unregistered, inside and outside the State of Punjab. Both these commodities are essential commodities to which the Central Sales Tax Act applies. Certain provisions of these Amending Acts are challenged on the ground that they offend section 15 of the Central Act and are also unconstitutional being in violation of Articles 14 and 19. The Punjab General Sales Tax Act was passed in 1948. It was amended from time to time. The Act as it stood on April 1, 1960, was challenged in Bhawani Cotton Mills Ltd. vs State of Punjab and anr.(1). On April 10, 1967 this Court by majority struck down certain portions of the Act on the ground that they were in conflict with the provision of section 15 of the Central Act. On November 1, 1966 .the former State of Punjab bifurcated and the States of Punjab and Haryana came into existence. On December 29, 1967, the Punjab Legislature enacted Act 7 of 1967 amending the original Act, and the following day the President 's Act intituled the Punjab General Sales Tax (Haryana Amendment and Validation) Act, 1967 (Act No. 14 of 1967) was passed for Haryana. Both the Acts were preceded by Ordinances which they replaced. It is not necessary to refer to the Ordinances. Section 15 of the (54 of 1956) provided as follows: "15. Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State. Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely : (1) ; 547 (a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed three per cent of the sale or purchase price thereof, and such tax shall not be leviable at more than one stage; (b) where a tax has been levied =under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter State trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State. " The section provides that in respect of declared goods the tax (sales or purchase) shall not exceed the prescribed limit and shall not be levied at more than one stage and shall be refunded to persons from whom it is collected if the goods are sold in the course of inter state trade or commerce. The original Punjab General Sales Tax Act, 1948 was challenged before this Court in Bhawani Cotton Mills Ltd. 's case(1). The Act in defining the tax able turnover in section 5 (2) allowed certain deductions and one such deduction in cl. (vi) was: " . . turnover during that period on the purchase of goods which are sold not later than six months after the close of the year, to a registered dealer, or in the course of inter State trade or commerce, or in the course of export out of the territory of India: Provided that in the case of such a sale to a registered dealer, a declaration, in the prescribed form and duly filled and signed by the registered dealer to whom the goods are sold, is furnished by the dealer claiming deduction. " The original section, as it stood on April 1, 1960, read as follows: "5. Rate of tax. (1) Subject to the provisions of this Act, there shall be levied on the taxable turnover every year of a dealer a tax at such rates not exceeding four naye paise in a rupee as the State Government may by notification direct: Provided . . . . . . (1) ; 548 Provided ,further that the rate of tax shall not exceed two naye paise in a rupee in respect of any declared goods as defined in clause (c) of section 2 of the , and such tax shall not be levied on the purchase or sale of such goods at more than one stage: Provided . . (2) In this Act the expression "taxable turnover" means that part of a dealer 's gross turnover during any period which remains after deducting therefrom (a) his turnover during that period on (i) . . . . (ii) sales to a registered dealer of goods declared by him in a prescribed form . . (vi) the purchase of goods which are sold not later than six months after the close of the year, to a registered dealer, or in the course of inter State trade or commerce, or in the course of export out of the territory of India: Provided that in the case of such a sale to a registered dealer a declaration in the prescribed form and duly filled and signed by the registered dealer to whom the goods are sold, is furnished by the dealer claiming deduction. It was contended in that case that section 2(ff), 5 (1) second proviso and 5(2)(a)(vi) were in conflict with section 15 of the Central Act. Bhawani Mills were dealers registered under the Punjab General Sales Tax Act, 1948 and for the assessment years 1960 61 1961 62 and 1962 63 the Mills denied their liability to the Central Sales Tax on the purchase of cotton in the accounting year. The scheme of the Act then in force put the tax on purchase of cotton (which was a declared commodity) 'at the rate of 2 naye paise in a rupee. By the second proviso to section 5 (1) it was further provided that such tax shall not be levied on the purchase or sale of such goods at more than one stage. The word 'dealer ' at that time was defined as follows: 549 Dealer means any person including a Department of Government who in the normal course of trade sells or purchases any goods that are actually delivered for the purpose of consumption in the State of Punjab. irrespective of the fact that the main place of business of such person is outside the said State and where the main place of business of ' any such person is not in the said State, 'dealer ' includes the local manager or agent of such person in Punjab in respect of such business. " The provisions for taxing purchases of cotton were challenged on the ground that there was a possibility of the tax being levied at more than one stage, the provisions of the second proviso notwithstanding. The argument was summarized by our brother Vaidialingam thus: "In this case, according to the appellant, it has to send quarterly returns, even during the accounting year and, as per section 10(4) of the Act, it has to pay also tax. in accordance with the returns submitted by it for every quarter. In the returns that are being sent, the dealer will have to include all purchases of cotton, effected by him during the quarter for which the return is sent. There is no indication, either in the Act. or in the rules or ,the forms prescribed, as to whether the persons from whom the appellant purchased cotton, have paid tax or not. Section 15 of the Central Act is not restricted only to registered dealers. There will also be nothing to guide the appellant to know as to whether the goods, purchased by it, have 'been sold to it by its vendor within the period mentioned in cl. (vi) of section 5(2)(a) of the Act. Under those circumstances, there is always a possibility, or even a certainty, of more persons than one having paid tax or being made liable to pay tax in respect of the same goods at different stages. That is quite opposed to the provisions of section 15 (a) of the Central Act. Even otherwise, it is pointed out that if a person has purchased cotton and sells it after the period provided for in section 5 (2)(a) (vi), that party is liable to pay sales tax and would have also paid the same. Another purchaser from the said party will also be liable to pay tax. on the same commodity, if he sells the goods, after 'the period mentioned in cl. That is, two persons are made liable for payment of tax in respect of the same commodity. In other words the purchases of the same item of declared goods, by the persons indicated above, are made liable for tax, whereas under the Central Act. there can be only one levy and collection of tax at one stage, either on sale or on purchase." 550 Learned counsel in that case showed by way of contrast how the Madras, Mysore, Andhra Pradesh and U.P. had avoided such a consequence. In answer, it was pointed out by the State that since the tax was levied, whether on sale or purchase, at the very first transaction, the stage was fixed and that the dealer could always claim exemption under section 5(2)(a)(vi) or a refund under section 12 of the Act. This Court in its majority judgment did not consider that the second proviso to section 5 (1) by its mere declaration prevented the levy of tax at more than one stage. The difficulty however, remained that the Act itself did not indicate the stage at which the tax was to be levied and because under section 15(1) of the Central Act there could be no liability for payment of tax unless this stage was so stated in the Act or the rules thereunder. It was pointed out that a dealer would have to show in his return all purchases of cotton and pay the tax with his return. There was nothing which would have enabled the dealer to know whether the tax had already been paid by another dealer and to exclude from his return those transactions. The dealer could not take a chance as heavy penalties were provided. This was particularly so where the goods passed through an unregistered dealer 's hands at an intermediate stage. In dealing with the latter part of the reasons this Court gave an example which may be quoted here: " . if a dealer, 'A ' sells the declared foods to 'B ', six months after the close of the year (B being a registered dealer), A becomes liable to purchase tax. But, if B sells the identical declared goods, again, after the period mentioned in sub el. (vi), he will also be liable to pay purchase tax. That means, in respect of. the same item of declared goods, more than one person is made liable to pay tax and the tax is also levied at more than one stage. That is not permissible under section 15(a) of the Central Act. If goods are resold to a nonregistered dealer, within the period, sub el. (vi), will not help the original purchaser. We may also point out, at this stage, that sub cl. (vi) of section 5(2)(a), negatives the assumption that the normal rule, under the Act, in respect of declared goods, is to levy the tax on the first purchaser. " This Court then referred to section 12 where there is a provision for refund which taken with rules 48 58 allowed for refund to be claimed, and found the provisions insufficient to get over the difficulty. This Court observed: "Even in the matter of obtaining refunds, there can be no controversy, that the appellant will have to place, before the officer concerned, particulars of transactions connected with the commodity, in question and also the 551 basis on which it claims the relief. It will be absolutely difficult, if not impossible, for persons like the appellant, to collect materials in this behalf, because, there is no provision, contained either in the Act or the rules, on the basis of which it will be entitled to be supplied with all the material information, relevant, for sustaining a request for refund. If the Central Act makes it mandatory that the tax can be collected only at one stage, in our opinion, it is not enough for the State to say that a person, who is not liable to pay tax, must nevertheless, pay it in the first instance, and then claim refund, at a later stage. We may state that the question as to how far a party can ask for refund, without the order of assessment being set aside, by appropriate proceedings, is highly doubtful; because at the time when the actual order of assessment is passed, in certain eases, it may not be possible for a party to say whether he is entitled to exemption, or not, under sub cl. (vi) of section 5(2) of the Act. If a person is not liable for payment of tax at all, at any time, the collection of a tax from him, with a possible contingency, of refund at a later stage, will not make the original levy valid; because, if particular sales or purchase are exempt from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levying tax." Relying upon the observations in .4. V. Fernandez vs State of Kerala (1) this Court concluded: " . the provisions contained in a statute with .respect to exemptions of tax or refund or rebate, on the one hand, must be distinguished from the total nonliability or non imposition of tax, on the other. These observations, also, in our opinion, effectively provide an answer to the stand taken by the State, in this ease that section 12 of the Act provides an adequate relief, by way of refund, even if tax is collected at an earlier stage." The Amending Acts which are now challenged set about removing these difficulties. These amendments are again challenged on the same lines. It is convenient to take the two Amending Acts separately. First we shall take up for consideration the Punjab amendments. Here, we are concerned only with a few of the amendments made by the Amending Act 7 of 1967. Section 5 was amended retrospectively from different dates. In subsection (1), in the second proviso, the words "as defined in el. ; 552 of section 2 of the , and such tax shall not be levied on the purchase of sale of such goods at more than one stage" are now omitted. After the second proviso another proviso is introduced: In sub section 1 A, the words "in respect of such goods other than declared goods" are substituted retrospectively from 16th December, 1965 for the words "in respect of such goods. ' After sub section (2) a new sub section (3) from October 1,1958. We may now set out the 5th sub section as it emerges from the amendment before we deal with the objections: "Section 5 Rate of tax (1) Subject to the provisions of this Act, there shall be levied on the taxable turnover of a dealer a tax at such rates not exceeding six naye paise in a rupee as the State Government may by notification direct. " (2) In this Act the expression 'taxable turnover means that part of a dealer 's gross turnover during any period which remains after deducting therefrom (a) his turnover during that period on (i) . . (vi) the purchase of ' goods which are sold not later than six months after the close of the year, to a registered dealer, or in the course of inter State trade or commerce, or in the course of export out of the territory of India; Provided that in the case of such sale to a registered dealer, a declaration, in the prescribed front and duly filled and signed by the registered dealer to whom the goods are sold, is furnished by the dealer claiming deduction. (3) Notwithstanding anything contained in this Act (a) in respect of declared goods tax shall be levied at one stage and that stage shall be (i) in the case of goods liable to sales tax, the stage of sale of such goods by the last dealer liable to pay tax under this Act; (ii) in the case of goods liable to purchase tax, the stage of purchase of such goods by the last dealer liable to pay tax under this Act; (b) the taxable turnover of any dealer for any period shall not include his turnover during that period 553 on any sale or purchase of declared goods at stage other than the stage referred to in subclause (i). or as the case may be, sub clause (ii) of clause (a). " In addition, a new section, section 11 AA was added to the following effect: "11 AA. Review of certain assessments, etc. of tax on declared goods : (1) Notwithstanding anything contained in this Act. the Assessing Authority shall (whether or not an application is made to him in this behalf), review all assessments and reassessments made before the commencement of the Punjab GeneraI Sales Tax Amendment and Validation Act, 1967, in respect of declared goods and make such order varying or revising the order previously made as may be necessary for bringing the order previously made into conformity with the provisions of this Act as amended by the Punjab General Sales Tax (Amendment and Validation) Act.1967: Provided that no proceeding for review shall be initiated without giving the dealer concerned a notice in writing of not less than thirty days. (2) Any dealer on whom a notice is served under sub section (1) may within thirty days from the date of receipt of such notice intimate in writing the assessing authority of his intention to abide by the assessment or reassessment sought to be reviewed and if he does so. the assessing authority shall not review such assessment or reassessment under this section. (3) No order shall be made under this section against any dealer without giving such dealer a reasonable opportunity of being heard. (4) Notwithstanding anything contained in any judgment, decree or order of any court or other authority to the contrary but subject to the provisions of the foregoing sub sections any assessment. reassessment. levy or collection of any tax in respect of declared goods made or purporting to have been made, and any ' action or thing taken or done or purporting to have done in relation to such assessment. are assessment. levy or collection under the provision of this Act before the commencement of the Punjab General 554 Sales Tax (Amendment and Validation) Act, 1967, shall be as valid and effective as if such assessment, reassessment, levy or collection or action or thing had been made, taken or done under this Act as amended by the Punjab General Sales Tax (Amendment and Validation)Act, 1967. " The argument is that the position has not altered at all even after the amendments and the liability to taxation at different stages remains still and the Act continues to be in conflict with the Central Act on the same reasons on which Bhawani Mills case(1) proceeded. It is argued that the amendments have been made retrospective but no machinery is provided to enable the dealer to discover that the goods had been taxed before and the single stage at which the tax is to be levied is still not clearly discernible. This is the main argument but there are many supplementary arguments which we shall notice later. For the present we confine our attention to the main point. The stage of tax is now stated in section 5(3)(i) and (ii). In the case of sales tax, the stage of tax is the sale of such goods by the last dealer liable to pay the tax and in the case of purchase tax the stage is purchase by the last dealer liable to pay the tax. It is also provided that the turnover of any dealer for any period shall not include his turnover during that period of any sale or purchase of declared goods at any other stage than the stage so mentioned. It will be seen that the matter is now in the hands of the dealer. He has to find out for himself whether he is liable to pay the tax or not. A dealer knows what he has done with his goods or is going to do with them. If he knows that he is not the last dealer having parted with the goods to another dealer or he knows that he is going to use the goods or sell them to consumers, he knows when ' he is not liable to tax and when he is. Therefore, he will not include the transaction in his taxable turnover in the first case but include it in the second. Goods in the hands of a dealer are not taxed. They are only taxed on the last purchase or sales. This information is always possessed by a dealer and by providing that he need not include in his turnover any transaction except when he is the last dealer, the position is now clear. It is contended that even so the dealer may not know that he is the last dealer and may make some mistake. The law does not take .into account the actions of persons who are negligent or mistaken but only of persons who act correctly, according to law. If the dealer is clear 'about his own position he is now quite able see whether he is the last purchaser liable to pay the tax or the last seller liable to pay the tax. The Act by Specifying the stage ; 555 as the last purchase or sale by a dealer liable to pay the tax makes the stage quite clear and by giving an option to him not to include such transactions in his return saves him from the liability to pay the tax till he is the dealer liable to pay the tax. In our opinion, therefore, the present provisions of the Act are quite clear and are quite sufficient to make the amended Act accord with the Central Act. The arguments noted in the earlier case of this Court do not therefore arise. It will thus be seen that the present Act does not suffer from any of the defects from which the unamended Act had suffered. It is, however, contended that the Act has been made retrospective but no machinery is provided to discover if the declared goods were assessed to tax more than once. As we have already pointed out, the matter is within the ken of the dealer himself and it is ,for him to decide whether he would not claim the benefit of section 11AA and ask for a refund or in future transactions delete the sales from his taxable turnover when he is not the last dealer liable to pay the tax. Therefore the retrospectivity of the Act does not make any difference. It is not contended before us that it was not within the competence of the Punjab Legislature to pass such an Act retrospectively. The defect pointed out is the self same defect which was noticed in Bhawani Mills case(1). But that defect no longer exists. It is argued further that there is a discrimination between the two kinds of manufacturers. In the definition of 'dealer ' in section (2)(d) and in the proviso to section 1 IAA it is submitted discrimination arises because of the opportunity given to a dealer to ask for reassessment or to submit to the old assessment. This is open to every dealer and the intention is to give ,an opportunity to the dealer himself leaving it to his own will whether to ask for a refund or not. This hardly can be said to create a discrimination. Lastly it is contended that there is a delegated legislation in that the maximum has been provided without indication of the circumstances under which the tax is to be levied. This, it is said, creates unguided delegation to administrative authority, the function of the legislature. It is to be noticed that the Central Act itself gives power to the legislature to choose a rate of tax at not more than 3 per cent of the taxable turnover. The tax levied is well within that limit and therefore the legislature has chosen the maximum and has left it free to the authorities to impose the tax within that maximum regard being had to the requirements of revenue and the expenditure necessary for the State. We may now deal with some arguments which are common both sets of cases before considering the case of the Haryana amendment. It is ,argued that the organisation of the State (1) ; 556 took place on November 1, 1966 and the amendment in some of its parts seeks to amend the original Act from a date anterior to this date. In other words, the legislature of one of the States seeks to amend a law passed by the composite State. This argument entirely misunderstands the position of the original Act after the reorganisation. That Act applied now as an independent Act to each of the areas and is subject to the legislative competence of the legislature in that area. The Act has been amended in the new States in relation to the area of that State and it is inconceivable that this could not be within the competence. If the argument were accepted then the Act would remain unamendable unless the composite State came into existence once more. The scheme of the States Reorganization Acts makes the laws applicable to the new areas until superseded, amended or altered by the appropriate legislature in the new States. This is what the legislature has done and there is nothing that can be said against such amendment. In regard to Haryana cases also the same arguments are urged. It is contended that the amended Act there also offends section 15 for the reasons which we have given. Neither the amendment of section 55 in this area nor the introduction of section 11AA for refund offends against section 15 of the Central Act or the equality clause of the Constitution. It is said that pending cases will always be reconsidered whether or not an application in that behalf is made but in the case of disposed of cases it depends upon the party to intimate in writing that he has no objection to the assessment or reassessment already made. If any objection can be taken it will 'be by those whose cases are pending and not by those whose cases have been closed. The option to submit to the assessment is open to every one alike and there is no discrimination if a party wants that his case need not be reconsidered. He has only to state that in writing and that would be the end of the matter. If he wants his case to be reconsidered then he can go before the Tribunal and get his case reconsidered. It is also urged in this connection that there is a discrimination between the imported goods and local goods. It is said that the discrimination is also between the first purchase in the case of imported goods and last sale in the case of local goods. Since the imported goods might be more expensive by reason of freight etc. or intermediary sales having taken place, it is said. that the burden of tax will be heavier and therefore this will offend against the equality clause and article 304 of the Constitution. In our opinion this argument is without any substance. The rate of tax same in every case. In State of Madras vs N.K. Nataraja Mudaliar(1). this Court stated that the essence of articles 301 and 303 is to enable the State by a law "to impose on goods imported (1) [1969] S.C.R. 557 from other States or the Union territories any tax to which similar goods manufactured or produced in the State are subject, so, however as not to discriminate between goods so imported and goods so manufactured or produced. " It was pointed out by this Court that "imposition of differential rates of tax by the same State on goods manufactured or produced in the State and similar goods imported in the State is prohibited by that clause. But where the taxing State is not imposing rates of tax on imported goods different from rates of tax on goods manufactured or produced,Art. 304 has no application". Here also the tax is at the same rate and therefore the tax cannot be said to be higher in the case of imported goods. It may be that when the rate is applied the resulting tax is somewhat higher but that does not offend against the equality contemplated by article 304. That is the consequence of ad valorem tax being levied at a particular rate. So long as the rate is the same Art.304 is satisfied. Even in the case of local manufactures if their cost of production varies, the net tax collected will be more or less in some cases but that does not create any inequality because inequality is not the result of the tax but results from the cost of production of the goods or the 'cost of their importation. This ground, therefore, has also no substance. We do not think it necessary to set down here the provisions of the Haryana Amendment Act because they follow the scheme of the Punjab Amendment Act in substance and what we have said in regard to the Punjab Amending Act applies mutatis mutandis to Haryana Amendment Act also. In the result these petitions have no substance. They are dismissed with costs. One set of hearing fee. Y.P. Petitions dismissed.

In a defamation case, at the instance of the accused his personal appearance. was dispensed .with by the Magistrate under section 540 A Cr. His advocate was examined under section 342 at the close of the trial and the accused was convicted. On the questions: (i) whether the pleader can represent the accused for purposes of section 342 and whether the examination of the pleader in place of the accused is sufficient compliance with the section in a case where the Magistrate has dispensed with the personal attendance of the accused 'and permitted him to appear by a pleader; and (ii) whether mere non examination of the accused or defective examination under section 342 vitiates the trial, HELD: (i) The privilege of making a statement under section 342 is personal to the accused and the scheme, purpose and language of the section lead to the conclusion that only he and no body else can be examined under it. If the statute gives the accused a personal privilege or imposes upon him a personal duty only he can exercise the privilege or perform the duty. The second part of section 342 is mandatory and imposes upon the court a duty to examine the accused at the close of the prosecution case in order to give him 'an opportunity to explain any circumstances appearing against him in the evidence and to say in his defence what he wants to say in his own words. The answers of the accused under section 342 is intended to be a substitute for the evidence which he can give under section 342 A and the privilege and duty of 'answering questions under section 342 cannot be delegated to a pleader. Though sections 205 and 540 A which empower a Magistrate to dispense with the personal appearance of the accused do not expressly mention that the pleader cannot be examined under section 342, it does not lead to the inference that the pleader can be so examined. G H, 109 B; 110 C D, 109 E; 110 F H] Dorabshah vs Emperor, A.I.R. 1926 Bom. 218, disapproved. (ii) Under section 537 the conviction and sentence are not reversible on account of any error, omission or irregularity in 'any proceedings during the trial unless the error, omission or irregularity has in fact occasioned a failure of justice. Therefore the mere non examination of the accused in the present case, under section 342 was not a ground for interference since no prejudice was established. [111 F] Tilakeshwar Singh vs The State of Bihar, [1955] 2 S.C.R. 105, K.C. Mathew vs The State of Travancore Cochin, [1955] 2 S.C.R. 1057 and Ram Shankar Singh vs State of West Bengal, [1962] Supp. 1 S.C.R. 49, 64, referred to.

iminal Appeal No.96 of 1952. Appeal by special leave granted by the Supreme Court on the 14th February, 1952) from the Order dated the 17th September, 1951 of the High Court of Judicature at Bombay (Bavdekar and Chainani JJ.) in Criminal Appeal No. 1026 of 1951 arising out of Judgment and Order dated the 28th July, 1951, of the Court of the Third Additional Sessions Judge of Poona in Sessions Case No. 78 of 1951. A. section B. Chari and J. B. Dadachanji for the appellant. C. K. Daphtary, Solicitor General for India, (Porus A. Mehta, with him) for the respondent. March 30. The Judgment of the Court was delivered by MAHAJAN J. The appellant on 28th July, 1951, was convicted on a charge under section 366, Indian Penal Code, for having kidnapped at Poona a minor girl Shilavati in order that she may be forced or seduced to illicit intercourse and was sentenced to undergo rigorous imprisonment for two years after a trial before the third additional Sessions Judge of that place sitting with a jury of live. The jury returned a verdict of guilty by a majority of three to two. The Sessions Judge came to the conclusion that the verdict was not perverse. He therefore accepted it. The appellant preferred an appeal to the High Court 811 but this was summarily dismissed. This appeal is before us by special leave. The prosecution case was that on the 12th December, 1949, the appellant who was a. music teacher went to the house of Shilavati and on the pretext that there was a girl waiting in his house and that he ' wanted to compare the voice of Shilavati with the voice of the girl took her to his house, and with the assistance of one Iqbal Putlabai (accused 2) kidnapped her. Shilavati was traced in Bombay after four months in the house of one Babu Konde. Thereafter she was medically examined and it was found that she was pregnant. To prove the case against the appellant the prosecution examined in all sixteen witnesses. Out of these four were eye witnesses, viz., Prahlad, Jamunabai, Namdeo and Shilavati. Yamunabai, the mother of Shilavati, stated that on 12th December when she returned home in the evening she learnt from her sister in law Jamunabai and others that the appellant had taken Shilavati on the pretext that he wanted to compare her voice with that of one Prabha who was waiting in his house and thereafter Shilavati had not come back, that on getting this information she along with her brothers and sister in law went to the house of the appellant and questioned him as to why Shilavati was not sent back, whereupon the appellant replied that he had sent her by bus. As Shilavati did not return home, she went to the police and lodged a complaint. Ananda, uncle of the girl, deposed to the same effect. Prahlad, brother of Shilavati, a boy of school going age, deposed that he saw Shilavati going with the appellant while he was playing outside the school. Namdeo, who is a bricklayer, stated that on the 12th December while he was returning after completing his work at about 3 30 p. m. he saw Shilavati going with the appellant. On medical examination it was found that Shilavati was a girl of 15 or 16 years of age and that 'she was pregnant. Shilavati was examined as P, W, 10 and she deposed 105 812 that the accused came to her house at about 3 30 p.m. and told her that there was a singing party at Kirkee and that she should accompany him there, that she went with him on the promise that the appellant would send her back before her mother returned home, that while at the appellant 's house she was asked to smell certain scents and she felt giddy and could not speak and when she came to senses in the morning she found herself in Bombay in a hut at Sion. She further said that on enquiry from one Kassam she was told that the appellant had left her there. On the 12th December at about 11 40 p.m. Yamunabai went to Padamji Gate police station and lodged a complaint there. In the complaint it was stated that Shilavati had quarrelled with one Shantabai and had left the house and since then she had not returned. The police were asked to find out her whereabouts. On the 13th she sent a complaint to the Police Inspector, A Division, Poona. Therein she made the allegation that the appellant used to come to her house for coaching Shilavati in harmonium, that she learnt that he had sent a chit to her daughter in her absence and had called her to his house and that on enquiries about Shilavati 's whereabouts he had given evasive answers. The police head constable who was on duty on receipt of this complaint examined Yamunabai. He read out the application to her and recorded her statement which reads thus: " My daughter Shilavati age about 13/14 has left my house at 4 p.m. I made search for my daughter at the house of my paternal aunt, but I could not find her there. M. H. Gyani (appellant) used to come to my house for coaching up my daughter in singing. I do not know whether he has taken away my daughter nor have I seen him taking her away. I have mentioned his name in my application through mistake. My daughter has gone out of my house to some other place. A search should therefore be made for her. . I again state that my daughter left the house 813 after quarrelling with my mother Harnabai. This is given in writing. " In July, 1950, Yamunabai sent an application to the Collector of Poona. In this application she said that she had appointed the appellant as a. music master for her daughter, that on Monday the 12th December, 1949, at about 6 p. m. the appellant and his friend Badsha had induced and kidnapped her to an unknown place. She asserted therein that she was sure that nobody but both M. H. Gyani and Badsha had kidnapped her daughter. In the witness box Yamuna Bai, as already stated, gave a different story and Shilavati herself did not fully support the version of her mother. On the 14th March, 1950, a letter, Exhibit 4 G, was sent by Shilavati to her mother. The relevant part of this letter is in these terms: " Since last so many days, I have left the house and I have not sent any letter to you and you must also be worrying as to where I have gone. I am at Bombay and quite well too. Do not worry about me, I had gone to the river at Bamburda, and there some one forced me and brought me to Bombay and he was prepared to marry with me. He was an ordinary and old fellow. J did not like it and he was going to convert me ' to Mahomedanism. I felt very sorry for this and I was very much sad. He beat me twice or thrice. To whom shall I express my sorrow ? But there was a boy staying, there whom I told all the facts and told him to save me anyhow. He promised to save me. There were two days remaining for my marriage. Till then, he arranged for my stay and also for dinner, and one day before the marriage, previous night he took me out from that place. There were many police complaints against him, and he, at the cost of his life, saved me. I married him in order to return his obligations. Now I am very happy, I am not in need of anything now. He is an ordinary boy. He works in a press, and he is a worker. He is from us and his name is Baburao Konde and next 814 time we will send a photograph of both of us. Do not worry about me. I am very happy. Namaskar to all, elderly persons and ashirwadas to youngsters. Namaskar to grandmother Harnabai. Convey namaskars to Anand mama, Vithal mama, Ram mama, Shankar, Prahlad, Laxman, Hirabai, Jamnabai, Yamunabai, Jaibai, and to master. " Shilavati is admittedly a talented Harijan girl who used to take part in dramatic peformances and used to give public peformances in music and dancing on some remuneration. The letter written by her from Bombay speaks for itself and it was on receipt of this letter and further correspondence to which it is not necessary to refer that the police got clue of her where abouts and were able to restore her to her mother Yamunabai. The statute law in India in certain circumstances permits an appeal against a jury 's verdict and authorizes the appellate court to substitute its own verdict on its own consideration of the evidence. It has conferred on the appellate court extensive powers of overruling or modifying the verdict of a jury in the interests of due administration of justice confident that the appellate judges who have not themselves seen and heard the witnesses, will not exercise lightly the responsible power entrusted to them. Section 423 in sub section (2), Criminal Procedure Code, states as follows: " Nothing herein contained shall authorize the court to alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the judge or to a misunderstanding on the part of the jury of the law as laid down by him. " Section 537 in sub clause (d) provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal on account of any misdirection in any charge to the jury 816 unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. Unless therefore it is established in a case that there has been a serious misdirection by the judge in charging. the jury which has occasioned a failure of justice and has misled the jury in giving its verdict the verdict of the jury cannot be set aside. The learned counsel for the appellant contended that the judge in his charge to the jury misdirected it in several important particulars and violated the rules of criminal jurisprudence and of evidence in a number of ways. It was said that he failed to warn the jury that it would be unsafe for it to act on the statement of Shilavati without her statement being corroborated by other evidence,in material particulars. The judge, according to the learned counsel, should have told the jury that though in law it was open to them if in the circumstances of this case they thought fit to do, to act on the uncorroborated testimony of Shilavati but that ordinarily it was not safe to do so without that statement being corroborated in material particulars. This omission on the part. of the judge, it was urged, amounted in law to a grave misdirection and the jury in all likelihood without such a warning arrived at its verdict on the basis of the uncorroborated evidence of the girl. That part of the charge in which reference was made by the judge to Shilavati 's evidence wherein she had said that she was told by Kassam Khan that the appellant had left her there was criticized on the ground that the jury bad been directed to act on inadmissible evidence. Then it was contendad that it was a serious misdirection to direct the jury that it had to solve the jigsaw puzzle that had arisen in the case by using their own ingenuity and by piecing together the various pieces of the puzzle. The last misdirection relied upon concerned the following part of the charge: "After weighing the probabilities of the case, the evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the 816 accused must not have committed the offence, then in that case you have to return a verdict of not guilty. " In our judgment, it is not necessary to pronounce on all the points urged by the learned counsel, because we are of the opinion that the judge clearly misdirected the jury when he asked it to solve the problem that had arisen by exercising its ingenuity and by resorting, if necessary, to speculative reasoning. In other words, the judge gave the jury a carte blanche to, come to its conclusion on the basis of its own conjectures, if necessary. Not only that. He told the jury to hold the accused not guilty in case it found it improbable that he must not have committed the offence. These propositions placed before the jury are repugnant to all notions of criminal jurisprudence and they must necessarily have affected its mind in arriving at the conclusion. This is how the charge on this point reads: " So you will find, gentlemen, that there are as many as six versions before this court and therefore you have to consider all these versions and probabilities of the case, to find out whether the improved version now before the court is a correct one. I would like also to bring to your notice the letter written at the instance of Shilavati from Bombay. That letter is Exhibit 4 G. Shilavati in her examination before the court does not admit that this letter was written at her instance. However, she has admitted before the police that this letter was written at her instance, and this was brought out in her cross examination. In this letter she had stated that she had gone on that day to Bamburda river and there she was forcibly kidnapped by some man who was about to marry her. That man was an old man and she did not approve that marriage. Fortunately, this Konde came to her rescue and took her to Bombay and married her. That is her statement. Now, gentlemen, this is a jigsaw puzzle kept before you. In jigsaw puzzles all the pieces are kept before us and we have to use our ingenuity and piece them together. Some 817 links are missing in this case. However, as rightly sub mitted by the learned Assistant Public Prosecutor, in such cases you have to weigh the probabilities of the case and therefore you have to find out from the material before us whether you can solve this jigsaw puzzle. Now these points are before you that there was a quarrel with Shantabai. The chit was alleged to have been sent by accused No. 1, and then the girl went to Bamburda river and there she was kidnapped by somebody. Now, gentlemen, you have to consider whether it is or it is not possible that the girl Shilavati might have received soma chit probably from the accused No. 1. This chit was seen by Shantabai who exposed to Harnabai the grandmother of the girl. The witness Harnabai is an old woman and probably she was put out and ;he might have taken her to task, and she might have even gone to the length of stating that she should go out of the house. Here is a young girl having hot blood, and it is or is it not probable that the girl in desperation had gone to Bamburda, and she mentions the river, and gentlemen, you can find that there is a confluence of the rivers Mula and Mutha; why did she go to the river ? Whether it is probable that she wanted to commit suicide. You will find, gentlemen, that near that confluence there is a mosque and in the evidence it has come out that the girl was found at the hut at Sion with an old Mahommedan named Kassam Khan and his keep. You have to consider whether it is probable that this Kassam Khan and his keep induced the girl to go with them to Bombay and whether Kassam Khan wanted to marry her there. You have to find out whether it is probable that this chivalrous man Konde rescued her from the old man Kassam Khan who was about to marry her and got himself married to the girl. The fact remains that the girl was found with Konde in Bombay ultimately. It is in evidence of the girl herself that she found herself in a hut at Sion and Kassam Khan and his keep were keeping a watch over her. . . . So, gentlemen, you Will have to find out all the probabilities of the case and 818 before us by the prosecution. " Had the charge to the jury stopped with the sentence, "So you will find, gentlemen, that there are as many as six versions before this court and therefore you have to consider all these versions and probabilities of the case, to find out whether the improved version now before the court is a correct one", no exception could possibly have been taken to it. When the learned judge however, proceeded to direct the jury to piece together the various pieces of the jigsaw puzzle by use of their ingenuity he clearly misdirected them inasmuch as he told them that they could in ' solving the problem draw upon their own imagination and exercise their ingenuity in the matter without reference to the evidence that had been placed by the prosecution on the record. Not only that, the learned judge himself indulged in speculation and placed a number of conjectures before the jury for its consideration. The learned judge surmised that the girl might well have gone to the river for committing suicide and asked the jury to consider this surmise as well. It was further surmised that a chit from the accused was received by Shilavati and that Shantabai saw that chit, and disclosed it to Harnabai, the grandmother, who in all likelihood took her to task and told her to get out of the house and thereupon the hot blooded Shilavati went to the river to commit suicide. There is no evidence whatsoever on the record about the actual receipt of that chit, of Shantabai seeing it and exposing this fact to Harnabai and of Harnabai threatening Shilavati. All these considerations mentioned to the jury were the results of the judge 's fertile imagination and were bound to mislead it into the belief that they could indulge in like conjectures and surmises in their effort to solve the puzzle. The direction to the jury that it was to solve the jigsaw puzzle by use of its ingenuity does not find place in an isolated passage of the charge, but runs through it. While winding up the learned judge again reiterated it and Said; 819 "As I have already told you, you have to piece together all the pieces of the jigsaw puzzle and try to., find out what story appears to you to be probable; whether the girl was drugged at all, or whether as stated by her in her letter she went to a river at Bamburda and there she met this Kassam Khan and his keep and along with them she went to Bombay of her own accord. " In the concluding part of the charge the learned judge said: "After weighing the probabilities of the case, evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the accused must not have committed the offence, then in that case you have to return a verdict of not guilty. " It is not possible say that these words were likely to give a correct lead to the jury in reaching its conclusion. All that the jury should have been told was that after weighing the probabilities of the case and the evidence on the record, as prudent men they should answer "whether the prosecution had made out the charge against the accused. " We are satisfied that as a result of These misdirections the jury in all likelihood gave a divided verdict of guilty by three to two not on evidence but on the basis of assumptions and conjectures. In this situation, the question for consideration is what procedure should be followed by this court for undoing the mischief that has happened and which would be most conducive to the ends of justice. The simplest course open to us is to order a retrial of the appellant. It is also open to us to remit the case to the High Court with a direction that it should consider the merits of the case in the light of our decision and say whether there has been a failure of justice as a result of these misdirections. Lastly it is open to us to examine the merits of the case and 106 820 decide for ourselves whether there has been a failure of justice in the case and an innocent man has been convicted. It is now well settled that in deciding whether there has been in fact a failure of justice in consequence of a misdirection the court is entitled to take the whole case into consideration. [Vide Abdul Rahim vs Emperor(1)]. The words "in fact" in section 637 (d), Criminal Procedure Code, emphasize the view that the court is entitled to go into the evidence itself in order to determine whether there has been a failure of justice. In the peculiar circumstances of this case we have chosen to adopt the third course, because at this moment of time it is most conducive to the ends of justice. It seems plain to us that on the material on this record no reasonable body of persons could possibly have arrived at the conclusion that the appellant kidnapped Shilavati as alleged by the prosecution. We have taken upon ourselves the responsibility of deciding this case without the valuable opinion of the High Court because we feel satisfied that any other course would cause unnecessary harassment to the appellant. With great respect we are, however constrained to observe that it was not right for the High Court to have dismissed the appeal preferred by the appellant to that court summarily, as it certainly raised some arguable points which required consideration though we have not thought it fit to deal with all of them. In cases which prima facie raise no arguable issue that course is, of course, justified, but this court would appreciate it if in arguable cases the summary rejection order gives some indication of the views of the High Court on the points raised. Without the opinion of the High Court on such points in special leave petitions under article 136 of the Constitution this Court sometimes feels embarrassed if it has to deal with those matters without the benefit of that opinion. (1) A.I.R. 1946 P.C. 821 The, learned Solicitor General contended that this was not a fit case where the court was justified in going behind the verdict of the jury and in deciding the case in accordance with its own view of the evidence. It was argued that the charge to the jury had to be taken as a whole, that though some slight exception might be taken to certain passages in the charge the learned judge had placed the case of both sides fairly before the jury and that not only did the learned judge place fairly the case of both sides before the jury, he indicated his opinion on the evidence strongly against the prosecution and that being so, the accused could not be allowed to say that the charge which was strongly in his favour and against the prosecution was defective in law. It was said that it was open to the jury to accept the statement of the mother of the girl as well as the statement of the girl in spite of the different conflicting versions mentioned in the charge and that the jury having done so, the matter stood concluded. As already observed, charge to the jury cannot be said to be a fair charge if it tells the jury to approach the decision of the matter from a wrong angle, and directs it to reach its decision by exercise of its own ingenuity and by having recourse to conjectures and speculative reasoning. This convention of the learned Solicitor General therefore cannot be seriously considered. That the verdict of the jury was erroneous in that it could not be the verdict of any body of reasonable men in the circumstances of this case is fully established by the facts and circumstances on the record. What Yamunabai deposed in court has been set out in the earlier part of this judgment. Her case now is that when she returned home on the 12th December, 1949, at about 6 30 p.m., she found that Shilavati was not in the house, she made enquiries from Jamna and Hira, she was told that accused 1 came and told them that there was a girl in his house and her voice was to be compared with Shilavati 's voice and took her 822 away on that pretext. Prahlad, P.W. 4, deposed that when his mother returned home at 6 p.m. he told her that Shilavati had been seen by him in the company of accused 1. Jamnabai, P.W. 5, stated that the accused came to the house at 3 p.m. and on the pretext that one girl had come to his house for singing he took Shilavati and that when Yamunabai returned she informed her of what had happened. Ananda, P.W. 6, repeated the same story. This story stands completely demolished by the different complaints that Yamunabai made to the police. There is no satisfactory explanation whatsoever why when she made her first report to the police at 11 40 p.m. she did not tell the police that she had been told by her son, by Jamuna and by Namdev that the girl had been taken away by the appellant and that he had told them that she had been sent back in a bus. Not only this, after she had sent a written complaint on the 13th December to the Police Inspector, Poona, suspecting the appellant of having kidnapped her daughter, she made a statement to the head constable, withdrawing that allegation in most unambiguous terms and stated that the girl had left the house after quarrelling with Harnabai. In the first report to the police she had said that the girl had left after quarrelling with one Shantabai. These statements made by her could not be said to be the result of mere figments of her brain. She must have made them on some basis. They give the lie direct to her present version. When later on she sent an application to the Collector accusing the appellant and Badsha of having kidnapped her daughter she. asserted that they had taken her away to an unknown.place at 6 p. m., though the occurrence in then earlier complaints was alleged to have taken place at about 3 30 p. m. The letter of 14th March, 1960, written at the instance of Shilavati to Yamunabai falsifies all the versions given by her and clearly suggests that the girl left the house of her own accord. In this letter she sent her regards to the appellant. If he had kidnapped, her, that expression of respect would 823 not have found place in that letter at all Another version was mentioned in the evidence as to how the occurrence took place. It was stated that the girl received a chit from the appellant and. on the basis of this chit a quarrel ensued and the girl left the house. On this state of the record it is quite evident that the version now given by Yamunabai to court or by Shilavati after she had come under the influence of her mother cannot be accepted. It seems that the appellant because he was a music master and had been giving lessons to the girl a few months before her disappearance has been convicted on a charge under section 366, Indian Penal Code, ' not on the basis of evidence but on the basis of surmises and, conjectures. The learned Solicitor General referred us to the statement of the bricklayer and of the boy Prahlad. A mere reading of their statements shows that these are not true and have been procured to fill in gaps in the prosecution case. Harnabai was not produced as a witness in the case and the learned judge in his charge to the jury was right when he observed that a number of links were missing in the prosecution case and they could only be filled in on the basis of conjectures. Both Yamunabai and Prahlad studiously avoided stating that the girl took part in dramas or that she danced in public places. They tried to make out that Shilavati was an unsophisticated girl having no knowledge of the world and that she never danced in public places or she never acted in public dramas. There is ample material on the record consisting of her photos in the advertisements as well as in the statements made to the police which establishes that she acted in various dramas for which she was paid at the rate of Rs. 5 for each perfor mance and that she gave, dance performances and she was intending to make singing and dancing as her profession. The very fact that the brother and the mother were at pains to create a false impression on the court by deposing falsely was itself sufficient to show that no reliance could be placed on their 824 testimony. We are therefore firmly of the opinion that there has been a grave failure of justice in this *case and the appellant, an innocent man, has been convicted of a serious offence on a verdict of the jury arrived at in all likelihood on the basis of conjectures and that that verdict was the. consequence of the misdirection given to the jury by the judge. For the reasons given above we allow this appeal, set aside the verdict of the jury, and acquit the appellant of the offence with which he was charged. Appeal allowed.

In his charge to the jury the Judge told them that the case before them was a jig saw puzzle with some missing links and directed them to use their ingenuity to piece them together by finding out the probabilities and seeing whether they could successfully solve the puzzle. Held, this was misdirection in that it invited the jury to exercise its ingenuity by having resort, if necessary, to speculative reasoning. Where a jury has been misdirected and has based its verdict on assumptions and conjectures the Supreme Court may order a retrial or remit the case to the High Court with a direction that it should consider the merits of the case in the light of the decision of the Supreme Court and say whether there has been 810 failure of justice as a result of the mis direotions, or it may examine the merits of the case and decide for itself whether there has been a failure of justice in the case. In deciding whether there has in fact been a failure of justice in consequence of a mis direction, the Court is entitled to take the whole case into consideration. Abdul Rahman vs Emperor (A.I.R. referred to. Though in cases which prima facie raise no arguable issue the High Court may dismiss an appeal summarily without giving any reasons, it is desirable that in arguable cases the High Court should in its summary rejection order give some indication of the views of the High Court on the points raised.

n Nos. 1679, 1662 and 1681 of 1973. (Under Article 32 of the Constitution for issue of a writ in the nature of Habeas Corpus.) R. K. Jain, amicus curiae for the Petitioner. M. M. Kshatriya and G. section Chatterjee for the Respondent. The Judgment of the Court was delivered by SARKARIA J. This judgment will dispose of all the three petitions above mentioned under Article 32 of the Constitution of India. It will be convenient to first take up Writ Petition No. 1679 of 1973. The petitioner Shaik Hanif, aged 40 years, was arrested on February 23, 1973 in pursuance of a detention order, dated February 19, 1973, passed by the District Magistrate, West Dinajpur in West Bengal under sub section (1) read with sub section (2) of s.3 of the (for short, 'the Act '). On February 19, 1973, the District Magistrate reported about his detention to the State Govern ment which approved it on March 1, 1973. The detenu made a representation which was rejected by the State Government on April 5, 1973 and forwarded to the Advisory Board for consideration. The Board reported to the State Government on April 24. 1973 that there was sufficient cause for the detention. Thereupon the Government confirmed the order of detention under s.12(1) of the Act and directed that the detention of the petitioner would continue "till the expiration of 12 months from the date of his detention or until the expiry of Defence of India Act of 1971 whichever is later. " The grounds of detention as conveyed to the detenu under P. 8(1), read as under : 260 "You are being detained in pursuance of a detention order on the ground that you have been acting in a manner prejudicial to the maintenance of supplies and services essential to the community, as evidenced by the particulars given below : On 3 7 72 at dead of night you along with your associates kept concealed 20 bundles, of Telegraph copper wire weighing 2 qutls. 60 kgs. in your court yard under earth with a view to dispose of the same in opportune moment. The said Telegraph copper wire were recovered on 3 7 72 on the basis of the confession of your associates. The police seized those copper wire and arrested your associate but you evaded arrest. This activity of yours seriously affected one of the essential services to the community by disrupting Telegraph facilities to the public and thus you acted in a manner prejudicial to the maintenance of supplies and services essential to the community. You are hereby informed that you may make a representation to the State Government against the detention order your case shall be placed before the Advisory Board within thirty days from the ' date of your detention under the order. You are also informed that under Section 11 (Act 26 of 1971) the Advisory Board, shall if you desire to be heard, hear you in person. Sd/ K. L. Gupta 19 2 73. District Magistrate, West Dinajpur, Balurghat". In answer to the Rule Nisi issued by this Court, Shri Sukuniar Sen, Deputy Secretary, Home (Special) Department, Government of West Bengal filed the counter affidavit, explaining that the district Magistrate who passed the order of detention "is at present not available for affirming the affidavit as he has been transferred from the said District". In para 4 of the affidavit, it is stated : "It appears from the records that after receiving reliable information relating to the illegal anti social and prejudicial activities of the above named detenu petitioner relating to the maintenance of supplies and services essential to the community, the said District Magistrate of West Dinajpur passed order of detention against him under the provisions of the said Act." In para 7, it is averred "I further state that it appears from the record that the petitioner is a veteran copper wire stealer. It was found on 3 7 72 that the petitioner and his associates kept concealed about 20 bundles of telegraph cable wire underground in the court yard of his house with a view to dispose the same at opportune moment. The said removal of copper wire from 261 the telegraph lines resulted in disruption of telegraph service and he was detained under the said Act". In paragraph 9 of the affidavit it is inter alia stated that the "statements made in paragraphs 3, 4, 5, 6 and 7 are based on information derived from the records kept in the office of the State Government in its Home Department (Special Section), which I verily believe to be true." Mr. R. K. Jain, who assisted the Court as amicus curiae advanced these contentions in support of the petition : (1) After the issue of Rule Nisi by this Court, it was incumbent upon the Respondent State to satisfy the Court about the legality of the detention by producing the affidavit of the District Magistrate who had. passed the detention order. The counter affidavit of the Deputy Secretary who did not personally deal with the case at any stage, is no substitute for the affidavit of the District Magistrate on the basis of whose subjective, satisfaction, the detention has been effected. The omission to file the counter affidavit of the District Magistrate coupled with the other circumstances of the case, shows that the detention order was passed in an utterly casual way, without application of mind and it was therefore, illegal; (2) From the counter affidavit of the Deputy Secretary, it appears that there were "reliable information" and material (other than the solitary ground of detention communicated to the detenu) before the detaining authority on the basis of which it was satisfied that the petitioner was a "veteran copper wire stealer" and had been indulging in "illegal anti social activities prejudicial to the maintenance of supplies and services essential to the community". Since the, nondisclosure of that information or material lo the detenu is not sought to be justified under clause (6) of Article 22, on the ground of its being facts which the detaining authority considers to be against the public interest to disclose, it was incumbent upon the authority to communicate the detenu that information and material in full. Since this was not done, the detenu was unable to make an :effective representation. The detention order was thus violative of the mandate of clause (5) of Article 22, and liable to be struck down on that score; (3) The Act is violative of Articles 19 and 21 of the Constitution because its : (a) Section 3 makes no provision for an objective determination of the truth of the allegations that form the basis of action under that section; (b) Section 8 does not provide for consideration of the representation of the detenu by an impartial body in accordance with the principles of natural justice; (c) Section It enables the Advisory Board to base its report on the material received by the Board from the Officer passing the order of detention without the said report being disclosed to the detenu and without affording him an opportunity to controvert the contents of the said report; 262 (d) Sections 11 and 12 empower the Advisory Board and the State Government, as the. case may be,. to take, into consideration materials and information without giving the detenu an opportunity to make his submissions with regard to those materials or to adduce evidence to disprove the allegations levelled against him. (4) (a) The continuance of Emergency in as much as it suspends Fundamental Rights, indefinitely under an executive fiat is unconstitutional. What the Parliament cannot destroy in exercise of its amendatory powers under Article 368, a fortiori, the President cannot bury by embalming and encasing the same in a Proclamation of Emergency. Fundamental Rights guaranteed under Article 19 are essential features of the, Constitution and their indefinite suspension under the cloak of Emergency, amounts to their destruction; (b) In forming in opinion as to the necessity of proclaiming Emergency under Article 352 of the Constitution, the President has to act on certain objective facts open to judicial scrutiny. The war having ended more than two years ago, there is no justification for continuing the Proclamation of Emergency. We will take up contentions (1) and (2) together. As was pointed out by this Court in Natarajan Singh vs State of Madhya Pradesh,(1) where in a habeas corpus petition a Rule Nisi is issued, it is incumbent upon the State to satisfy the Court that the detention of the petitioner was legal and in conformity not only with the mandatory provisions of the Act, but is also in accord with the requirements implicit in clause (5) of Article 22 of the Constitution. Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective standards, it is all the more desirable that in response to the Rule Nisi the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order under s.3 was passed. If for sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention under s.3 cannot be furnished, the counter affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submitted it to the Minister or other Officer duly authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters. In the instant case, the counter affidavit of Shri Sukumar Sen Deputy Secretary, Home, suffers from two infirmities. Firstly, the deponent does not swear that he had at any relevant time personally dealt with the case of the detenu. He has verified the correctness of the averments in his affidavit on the basis of facts gathered from tile official records. Secondly, the explanation given for not furnishing the affidavit of the District Magistrate who had passed the detention order, is that the Magistrate has been transferred from that District. The explanation is far from being satisfactory. (1) A. I. R. 263 In Ranjit Dam vs State of West Bengal,(1) the reason given for not ' making the counter affidavit by the Magistrate himself, who had passed the detention order, was that he had since then been appointed as Secretary of the State Electricity Board. It was held that the reason, given was not satisfactory. "Shri Sukumar Sen is incharge of a specially created cell in the Government Secretariat of West Bengal, which maintains the records of all persons detained under the Act. It is true that a similar reason given for not furnishing the affidavit of the Magistrate who passed the impugned order, was accepted by this Court in J. N. Roy vs State of West Bengal,(2) and instead, the counter affidavit of the Secretariat official specially entrusted with detention cases was deemed sufficient. But that was so because nothing turnedon it. Nevertheless, the failure to furnish the counter affidavit of theMagistrate who passed the order of detention, is an impropriety. In most cases, it may not be of much consequence but in a few cases, for instance, where mala fides or extraneous considerations are attributed: to the Magistrate or the detaining authority, it may, taken in conjunction with other circumstances, assume the shape of a serious infirmity, leading the Court to declare the detention illegal. In the present case, too, the mere omission to file the affidavit of the District Magistrate does not vitiate the detention orders. But it is a circumstance, among others, in the light of which contention (2) is to be appreciated. The Act restricts citizens ' personal liberty which is a fundamental ' right under the Constitution. It has therefore to be construed strictly, as far as possible, in favour of the citizen and in a manner that does not restrict that right to an extent greater than is necessary to effectuate that object. The provisions of the Act have, therefore, to be applied with watchful care and circumspection. It is the duty of the. court tosee that the efficacy of the limited yet crucial, safeguards provided in the law of preventive detention is not lost in mechanical routine, dull casualness and chill indifference on the part of the authorities entrusted with their application. Let us therefore see, whether there has been sucha careful and strict compliance with the legal procedure in the instant case. In the counter affidavit, the Deputy Secretary has inter alia, stated that the petitioner is a "veteran copper wire stealer" and there were "reliable informations" before the District Magistrate about his antisocial activities prejudicial to the maintenance of supplies and services essential to the community. "Veteran copper wire stealer" implies a long course of repetitive thievery of copper wire. No one is born a knave: it takes time for one to become so. It is manifest that but forthose "reliable informations" showing that the detenu was repeatedly and habitually stealing copper wire, the District Magistrate, night not have passed the detention order in question. Those "reliable information" were withheld. No privilege under clause (6) of Article 22 has been claimed in respect of them. Even the main ground viz. that the petitioner is a "veteran copper wire stealer" was not, as such,, (1) A. 1. R. (2) A.I.R. 1972 S.C. 2143. 264 communicated to the detenu. The ground intimated was that "you have been acting in a manner prejudicial to the Maintenance of Supplies and Services essential to the community". Only one solitary instance of the recovery of stolen copper wire from the petitioner 's house on 3 7 1972 was conveyed to the detenu. Learned Counsel for the State has been fair enough to collect and place before us what the Deputy Secretary in his counter affidavit called "reliable information" on the basis of which the District Magistrate ordered the detention. In this, under the caption "Criminal Biography", is mentioned inter alia, how the petitioner with his associates organised a gang to steal telegraph copper wire systematically. From what has been said above, it is clear as day light that all material particulars of the ground of detention which were necessary ,to enable the detenu to make an effective representation, were not communicated to him. The impugned order of detention is thus ,violative of Article 22(5) of the Constitution, and is liable to be quashed on that score alone. In view of the above finding, it is not necessary to decide the. .remaining contentions canvassed by Mr. Jain. Now we take up Writ Petition No. 1662 of 1973. In this case also, Shri Sukumar Sen, Deputy Secretary in his counter affidavit .averred that the detenu was a "veteran copper wire stealer" and that the District Magistrate, Burdwan, had passed the order of the petitioner 's detention on receipt of reliable information about the illegal, anti .social and prejudicial activities of the petitioner. Here also, all the 'material information ' showing or even alleging how the petitioner was a "veteran copper wire stealer" was not communicated to him. Only two instances of theft of electric copper wire which took place on November 6, 1971 and November 25, 1971 were intimated to him. Learned Counsel for the State has placed for our perusal a copy of History Sheet of the detenu on receiving which, the District Magistrate had passed the impugned order of detention. Among other facts, it is mentioned therein that on November 3, 1973, also, the petitioner alongwith his two associates had committed theft of, electric copper wire measuring 125 ft. from the electric poles near Hatgarui and a case under section 379, Penal Code was registered in Police Station Asansol on the same date, relating to this theft. It is further stated that "from his boyhood the petitioner started mixing up with anti social elements, wagon breakers and in course of time, he along with his associates, indulged in thefts of iron materials, copper wire and other forms of crime". All this matter including that concerning the theft dated November 3, 1973, was admittedly not communicated to the detenu. Its non to the detenu is not being justified as privileged under Article 22(6). Thus in this case also, all the material or adequate particulars relatable to the ground intimated, were not conveyed to the detenu. It is not possible to predicate how far the mind of the ,detaining authority was influenced in passing the order of detention by the uncommunicative material. By this omission, the petitioner 's 265. constitutional right of making an effective representation was seriously. jeopardised. In the result the detention of the petitioner (Gudma Majhi) must be held to be illegal. In Writ Petition No. 1681 of 1973, the ground of detention as communicated to the petitioner, Kamal Saha, ran as under : "That on 10 12 1972 at about 19 30 hrs. you and your associates being armed with daggers put all the passengers to fear of death of a IInd Class Compartment of 162 Dn. train at New Barrackpore R.S. and committed robbery in respect of one bundle of woollen Shawl containing 90 pieces valued at Rs. 9500/ from Golam Kadar Kashmiri of 96 Ripon Street Calcutta 16, you were subsequently arrested. 44 pieces of shawl valued a Rs. 4500/ were recovered later on. Your action caused panic, confusion and disturbed public order then and there, you have thus acted in a. manner prejudicial to the maintenance of public order". In Para 7 of counter affidavit, Shri Sukumar Sen, Deputy Secretary, stated "that it appears from the records that the petitioner is a veteran Railway Criminal and was indulging in committing robbery in running sub urban trains. It appears that on 10 12 1972 at about 19 30 hours the petitioner and his associates armed with daggers, committed robbery in a III class Railway Compartment. " The history sheet communicated by the Superintendent of Police to,, the detaining authority states that "he formed and organised a gang and started committing robbery in Sealdah Bongaon Railway Section. , This gang is so desperate that nor body of the locality resists them,. even if they commit robbery and other offences even in their very presence. They always move with deadly weapons such as pype guns, daggers, bombs etc. by which they intimidate the local people." Thereafter, instances of two robberies committed by him along with his associates, on January 30, 197Z and August 1, 1972, are, mentioned. The particulars of any past crime committed by him, which were necessary for showing how he was a veteran railway criminal, were not communicated to the detenu. In respect of the uncommunicative material, nor privilege under article 22(6) was claimed '. 266 In the absence of those material particulars, the detenu could not ,exercise his constitutional right of making an effective representation. In other words, the grounds communicated to the petitioner suffered .from vagueness. For the reasons aforesaid, all the three petitions are allowed and the petitioner in each of them is directed to be set at liberty forthwith. Nothing in this judgment, however shall preclude, the State Government /District Magistrate, if so advised, from passing fresh orders of the detention of the petitioners or any of them, after full and meticulous 'compliance with the procedure prescribed by law. S.C. Petitions allowed.

On the tenants ' appeal, the Full Bench of the Madras High Court held that the Act controls both contractual and statutory tenancies and it enables both landlords and tenants to seek the benefit of fixation of fair rent. Thereafter, the matter came up before a Single Judge of the High Court who applying the provisions of the ' Act to the facts of the case, held that the Act did not apply to the premises in question. The Division Bench reversed this decision, In the appeal by special leave the tenants mainly contended that a landlord has no right to apply for the fixation of a fair rent at a figure higher than the contractual rent, where there was a subsisting contract of tenancy. Dismissing the appeal, HELD : (per majority and Bhagwati, JJ. Contra) The present Act which replaces the 1949 Act adopts a completely new scheme of its own and provides for every contingency, i.e. in 'the relationship of landlord and tenant. The provisions of the Act show that the Madras Legislature deliberately proceeded on, the basis that fair rent was to be fixed which was to be fair both to the landlords as 'well as to the tenants, and that only the poorer class of tenants needed protection. 'the assumption that the Act like ill rent acts, is intended only for the to on of tenants is not warranted by the provisions of the Act. It is clear therefore, that the fair rent under the present Act is payable during the contract period as well as after the expiry of the contract period. [636C F] The analysis. of the Act shows that it has a scheme of its own and it is intended to provide a complete code in respect of. both contractual tanancees. the definitions of the term "landlord" and "tenant" show that the Act applies to contractual tenancies,as well as to. cases of statutory tenants and their landlords. On some supposed general principles governing all Rent Acts it cannot be argued that such fixation can only be for the benefit of the tenants when the Act clearly lays down that both landlords and tenants can apply for fixation of fair. A close reading of the Act shows that the fair rent is fixed for the building and it is payable by whoever is the tenant whether a contractual tenant or statutory tenant. What is fixed is not the fair rent payable by the tenant or to, the landlord who applies for fixation of fair rent but fair rent for the building somethings like an incident of the tenure, regarding; the building. [637F] 630 The general observations to the contrary in Bhaiya Punjalal Bhagwanddin vs Dave Bhagwat Prabhuprasad ; and Manujendra vs Purendu Prasad ; , held obiter. Sri Brij Raj Krishna vs section K. Shaw and Bros. [1951] S.C.R. 145, Hem Chand V. Sham Devi, I.L.R. [1955] Punj, 36, R. Krishnamurthy vs Parthasarathy A.I.R. 1949 Mad. 780, distinguished. Abbashails case ; and Mangilal vs Sugarchand Rathi ; , referred to. Per Mathew and Bhagwati, JJ : Two basic considerations must guide our approach to the question whether a landlord can, during the subsistence of the contractual tenancy, apply for fixation of fair rent under section 4(1) of the Act. The first is that the rent which is the result of contract between the parties must continue to bind them so long as the contract subsists, unless there is anything in the statute which expressly or by necessary implication over rides the contract. It is to counter act the in justice resulting from in equality in bargaining power and to bring about social or distributive justice that social legislation interferes with sanity of contract. Ordinarily, we do not find and in deed it would be a strange and rather incomprehensible phenomenon,that legislation intervenes to disturb the sanctity of contract for the benefit of a stronger party who does not need the protective bind of the legislature. Secondly the Act has been enacted inter alia, with the object of controlling rents of residential and non residential buildings and preventing unreasonable a diction of tenants. Tamil Nadu Act 18 of 1960 is in its essential character as also in its object and purpose similar to what may conveniently be described rent control legislation, in other States, such as Maharashtra, Gujarat, West Bengal and Madhya Pradesh. The general purpose and intendment of rent control legislation and its positive thrust and emphasis on the protection of the tenant cannot be lost sight of when we are construing a similar legislation like the Tamil Nadu Act 18 of 1960 [642C] Bhaiya Punjalal Bhagwanddin vs Dave Bhagwat prasad Prabhuprasad ; , Mangi Lal vs sugarchand Rathi [1964] 5 S.C.R. and Manujendra vs Pwendu prasad ; referred to. Having regard to the basic character of the statute as a rent control legislation and the scheme of its provisions and reading sec. 4(1) in its contextual setting and in the light of the other provisions of the statute, the conclusion is inescapable that the ward "landlord" in sec. 4(1) is used in a limited sense and it does not include contractual landlord. The landlord does not have the right to apply for fixation of fair rent during the subsistence of the contractual tenancy. It is only when the contract of tenancy is lawfully determined that he becomes entitled to apply for fixation of fair rent, for it is only then that he can recover fair rent higher than the agreed rent from the statutory tenant, there being no contract of tenancy to bind him down to the agreed rent. [646G] (2) Per majority : General observations in earlier decisions of this Court should be confined to the facts of those case. Any general observation cannot apply in interpreting the provisions of an Act unless this Court has applied its mind to and analysed the provisions of that particular Act. Therefore, the observations in ; , that rent acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling conferring no now right but restricting the existing rights either under the contract or under the general law, should not be held to apply to all rent Acts irrespective of the scheme of those acts and their provisions. The present Act did not proceed on the basis that the legislation regarding rent control was only for the benefit of the tenants. It wanted the legislation to be fair both to the landlord and the tenant. [834B] (per Mathew and Bhagwati,JJ). The meaning of the term landlord ' must not be confined to that given in the definition or to its ordinary etymological meaning but must be understood in the context of the setting in which it occurs, and the scheme and object of the Act. The Provisions of the Act, particularly of sec. 7, are clearly restrictive in character and not enabling provisions empowering the landlord to recover the fairrent where it is higher than the agreed rent. This is the only rational 631 construction which can be placed on the relevant provisions of the Act relating to control of rent and such a construction is not only compelled by grammar and language but also accords with the broad general considerations in interpreting the rent control legislation.[646B] Cog vs Hakes(1890) A.C. 15, and Whethered vs Calcutta(842)5 Scctt. N.R. 409,referred to. (3)Any variation of rent reserved by registered lease deed must be made by another registered instrument. The agreement between the landlord and the tenant by which the rent was increased being in variation of a written contract,evidence of that was barred under section 92 of the Evidence Act.

ivil Appeal Nos. 301 303 of 1970. From the Judgment and Order dated 17 11 1967 of the Andhra Pradesh High Court in Writ Petition Nos. 138/63, 1256/63 and 1460/63. A.V.V. Nair for the Appellant. K. Rajendra Chowdhary for the Respondent. 628 The Judgment of the Court was delivered by KRISHNA IYER, J. We are in complete agreement with the reasoning and conclusions of the High Court and a brief statement of the short point that arises for decision and of the grounds for dismissing the appeal is all that is needed. The Motor Vehicles (Taxation of Passengers and Goods) Act passed by the Madras legislature in the composite Madras State was made applicable to Andhra Pradesh when that State was carved out. There were certain difficulties in the matter of levy of taxation on vehicles plying on inter state routes and the State of Andhra Pradesh thought it fit to enact its own legislation, which it did in the form of the Andhra Pradesh Motor Vehicles (Taxation of Passengers and Goods) Act, 1952, Section 4(2) whereof empowered the State Government to make necessary rules to effectuate the enactment. Pursuant to this power, certain rules were framed, of which rule 1 consisted of three sub rules. On 19 6 1957 sub rules (4) and (5) were added to that rule and sub rule (5) ran thus: "The proviso to sub rule 1 of Rule 1 shall cease to be operative on and from 1st October, 1955 and the composition fee calculated with reference to clause (a) or clause (b) of sub rule (1) in respect of vehicle plying on inter State routes lying partly in Madras State and partly in the Andhra State shall, with effect from that date be paid in the State where the vehicles are registered and normally kept." This sub rule enabled operators of Motor Vehicles on inter state routes lying partly in the Madras State and partly in the State of Andhra Pradesh to pay the tax duly to either of these two States. It was, however, deleted along with sub rules (3) and (4) on 29th March, 1963 with effect from 1st April, 1962 and it is the retrospectivity of the deletion that is challenged before us because the Andhra Pradesh State sought to collect tax for the period commencing 1st April, 1962 from the respondent under the Act above referred to, although he had already paid the same to the State of Madras. The ground of invalidity was stated to be that section 4(1) did not confer on the State Government power to make rules with retrospective effect. Thus, the only question which engages our attention is as to whether section 4(2) does confer on the delegate, namely, the State Government, the power to make retrospective rules. The High Court, after an elaborate discussion on the jurisprudence of subordinate legislation, came to the conclusion that no such power was conferred on the State Government and that consequently the deletion which resulted in retrospective operation of the liability to payment of tax was bad in law. 629 The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the Constitutional limitations. But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication. In the present case the power under section 4(2) does not indicate either alternative. The position has been considered by the High Court at length and there is no need for us to go through the exercise over again. Indeed, considerable reliance was placed by learned counsel for the appellant on two circumstances. He argued that the impugned rule was framed in pursuance of a dissolution passed by the legislature. The fact does not have any bearing on the question under consideration except for us to make the observation that the State Government should have been more careful in giving effect to the resolution and should not have relied upon its delegated power which did not carry with it the power to make retrospective rules. The second ground pressed before us by learned counsel for the appellant is that the rules had to be placed on the table of and approved by the legislature. This was sufficient indication, in his submission, for us to infer that retrospectively in the rule making power was implicit. We cannot agree. The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules. The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of any one of the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand vs Union of India,(1) Mr. Justice Khanna speaking for the Bench observed: "The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a rule if it is made not in conformity with Section 40 of the Act. It would appear from the observations on pages 304 to 306 of the Sixth Edition of Craies on Statutes Law that there are three kinds of laying: (i) Laying without further procedure: (ii) Laying subject to negative resolution: (iii) Laying subject to affirmative resolution. The laying referred to in sub section (3) of Section 40 is of the second category because the above sub section contemplates that the rules would have effect unless modified or annulled by 630 the House of Parliament. The act of the Central Government in laying the rules before each House of Parliament would not, however, prevent the courts from scrutinising the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the Central Government. " It is, therefore, plain that the authority of the State Government under the delegation does not empower it to make retrospective rules. With this position clarified there is no surviving submission for appellant 's counsel. The appeal must be dismissed and we do so with costs (one set).

Dismissing the special leave petition, the Court ^ HELD: (1) The legislature has no doubt plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the constitutional limitations. But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication. In the present case the power under Section 4(2) does not indicate either alternative. Therefore the authority of the State Government under the delegation does not empower it to make retrospective rules. [629 A B; 630 B] (2) The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective rules. The whole purpose of laying on the table of the legislature the rules framed by the State Government is different. [629E] Hukum Chand vs Union of India, ; (902), followed. Observation: The State Government should have been more careful in giving effect to the resolution passed by the legislature and should not have relied upon its delegated powers which did not carry with it the powers to make retrospective rules. [629C]

Appeal No. 96 of 1963. Appeal by special leave from the judgment dated October 13, 1960, of the Punjab High Court in Income tax Case No. 21 of 1958. K.N. Rajagopala Sastri and R.N. Sachthey, for the appellant. A.V. Viswanatha Sastri and N.N. Keshwani, for the respondent. November 18, 1963. The Judgment of the Court was delivered by SHAH J. M/S Indian Woollen Textiles Mills Amritsar hereinafter called 'the assessee ' had at different places in India, branches one of which was an industrial undertaking conducted in the name of Eldee Velvet and Silk Mills called for the sake of brevity 'Eldee '. "Eldee" had advanced Rs. 3,21,460 to another concern, the Bombay Fine Worsted Manufacturers ' Castle Mills hereinafter called 'Castle '. In the assessment year 1951 52, the assessee claimed under section 15C of the Indian Income tax Act,1922, exemption from tax in respect of 6% of the capital employed in 'Eldee ' as a newly established undertaking and sought to include in the computation of the capital so employed Rs. 3,21,460 advanced to 'Castle '. The Income tax Officer, Special Circle Amritsar, and the Appellate Assistant Commissioner rejected the claim. But the Income tax Appellate Tribunal modified the assessment and directed in clusion of the amount advanced to 'Castle ' in the computation of capital invested for the purpose of 429 section 15C. An application submitted under section 66(1) of the Indian Income tax Act to the Tribunal to refer a question which it was contended by the Commissioner arose out of the order of the Tribunal was rejected and the petition of the Commissioner under section 66(2) for an order directing the Tribunal to state the case and refer it to the High Court was also dismissed. With special leave the Commissioner has appealed to this Court. The question in dispute before the revenue authorities was whether the business called 'Castle ' at Bombay was a branch of the assessee. The Appellate Assistant Commissioner rejected the claim of the assessee to include the amount of Rs. 3,21,460 in the capital employed in the undertaking 'Eldee ', because in his view there were in these two undertakings the same eight partners with a share of /2/(two annas) each, and that the constitution of both the undertakings being the same, 'Castle ' could not be regarded as a separate entity. The Tribunal disagreed with the view of the Appellate Assistant Commissioner, relying upon only one circumstance viz., that in the assessment for the year 1951 52 the income from 'Castle ' had not been computed and included in the assessment of the assessee. It did not consider the other questions whether the constitution and ownership of the two businesses "were the same". The High Court declined to require the Tribunal to state the case holding that the finding of the Tribunal was one of fact as it was based on the inference arising from the non inclusion by the Income tax Officer in the assessment in question of the income of 'Castle ' and that "the factor taken into consideration by the Appellate Tribunal in coming to the conclusion, it did," was a relevant factor. Section 66(2) invests the High Court with jurisdiction to require the Appellate Tribunal to state a case and to refer it, if the Appellate Tribunal has refused to state the case on the ground that no question of law arises, and the High Court being approached 430 by the aggrieved party within the period of limitation prescribed, is not satisfied about the correctness of the decision of the Appellate Tribunal refusing to state the case. Under the Income tax Act it is for the Tribunal to decide all questions of fact: the High Court has the power merely to advise the Tribunal on questions of law arising out of the order of the Tribunal. In so advising the High Court must accept the findings of the Tribunal on matters of appreciation of evidence. But the refusal of the Tribunal to state a case for the opinion of the High Court, on the view that a question of law does not arise out of the order is not conclusive. The High Court has the power to call upon the Tribunal to state the case if in its view a question of law arises out of the order of the Tribunal. Such a question may arise out of the findings of the Tribunal, and also if the Tribunal has misdirected itself in law in arriving at its finding. It is not open to the Court to discard the Tribunal 's finding of fact, if there is some evidence to support the finding of the Tribunal on a question of fact, even if on a review of the evidence the Court might have arrived at a different conclusion. It must however appear that the Tribunal had considered evidence covering all the essential matters before arriving at its conclusion. If the conclusion of the Tribunal is based upon some evidence ignoring other essential matters, it cannot be regarded as a finding not giving rise to a question liable to be referred to the Court. Non inclusion of the income of 'Castle ' in the assessment of the assessee may have been a relevant circumstance, but its effect had to be considered in the light of other circumstances on which the Appellate Assistant Commissioner had relied. Moreover, reliance placed by the Tribunal upon the single circumstance on which its decision was founded had proceeded on an assumption that in the previous year to the year of assessment 1951 52, 'Castle ' had carried on business and had earned income. The observations made by the Appellate Assistant Commissioner about 431 'Castle ' being separately assessed at Bombay in the status of a registered firm apparently refer to assessment of that business in subsequent years and not in the year of assessment 1951 52. The conclusion of the Tribunal therefore suffers from a double infirmity: it assumes the only fact on which its conclusion is founded and ignores other relevant matters on which the Appellate Assistant Commissioner relied in support of his conclusion. The Tribunal has therefore misdirected itself in law in arriving at its finding, and in refusing to require the Tribunal to state the case and to refer it, the High Court was, in our view, in error. The appeal is therefore allowed and the proceedings are remanded to the High Court with a direction to proceed according to law. Costs in this appeal will be costs in the High Court. Appeal allowed and Case remanded.

The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.

Criminal Appeal No. 135 of 1968. Appeal by special leave from the judgment and order dated May 1, 1968 of the Madhya Praesh High Court, Gwalior Bench .in Criminal Appeal No. 143 of 1966. R. L. Kohli and J. C. Talwar, for the appellant. I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed a aginst the judgment of the High Court of Madhya Pradesh, Gwalior Bench, allowing the appeal of the State and convicting the appellant for having committed an offence punishable under section 435, Indian Penal Code, and sentencing him to undergo imprisonment for one year. The only point involved in the present appeal is whether the appellant was a person of unsound mind within section 84 of the Indian Penal Code at the time of the incident. The Magistrate held that he was not liable to punishment as he was insane at that time and did not know that he was doing anything wrong or anything contrary to law. The High Court, on the other hand, came to the conclusion that the case of the appellant did not 'fall within the exception created by section 84, I.P.C. It is now well settled that the crucial point of time at which unsoundness of mind should be established is the time when the .crime is actually committed and the burden of proving this lies of on the accused. (See State of Madhya Pradesh vs Ahmadullah) (1). In D. C. Thakker vs State of Gujarat(2) it was laid down that "there is a rebuttable presu mption that the accused was not insane, when he committed the crime, in the sense laid down by section 84 of the Indian Penal Code : the accused may rebut it by, placing before the court all the relevant evidence al, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil pro cedings. " It was further observed : "The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was circumstances which preceded, attended and followed the mind as to be entitled to the benefit of section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime. The learned counsel contends that if regard is had to the circumstances which preceded, attended and followed the crime it would be clear that the accused is entitled to the benefit of section 84 of the Indian Penal Code. (1) [1961] 3S.C.R.583. (2) [1964] 7S.C.R.361. 253 The prosecution case is that on January 22, 1965, the appel lant set fire to the grass lying in the khalyan of Nemichand at the time of the setting of the sun. He was caught at the spot while setting fire. On being asked why he did it the accused said; "I burnt it and do whatever you want." The accused was arrested on January 23, 1965, and he remained in police, custody till February 2, 1965, when it was found that the accused needed medical examination, and accordingly the District Magistrate ordered that he be medically examined. No explanation has been given why he was kept in police custody all that time. There is no evidence either to indicate as to his condition from the time of his arrest to the time when his case was referred for medical examination. These facts were within the knowledge of the police and we should have expected that the prosecution would lead evidence regarding his condition during this time. Further, the police made it impossible for the appellant to prove his mental condition at the time of the incident by keeping him in their custody from January 23 to February 2, 1965, not having him examined and not sending him to judicial custody earlier where he would have been examined by the jail doctor. On February 20, 1965, V. section Vaidya, Assistant Surgeon,. Civil Hospital, Vidisha, reported to the Jailor, Sub Jail, Vidisha, as follows : "Subject, In Ref. to your letter No. 295 dated 8 2 1965. Sir, Ratanlal Prisoner was kept under observation as indoor patient during this time. He was keeping silent, he never used to reply any question so in my opinion he should be refd. to some specialist for further investigation and needful. " On February 22, 1965, Y. D. Kamran, Civil Surgeon, Vidisha,. reported as follows: "Shri Ratanlal, undertrial, was examined by me. He does not appear to be deaf or dumb, but is mentally retarded. He should be referred to Stiperintendent, Mental Hospital, Gwalior, for expert opinion." On March 29, 1965, Dr. B. Shah. Psychiatrist and Superintendent,Mental Hospital, Gwalior, reported as follows: "This is to certify that Shri Ratanlal s/o Kishanlal who has been kept under observation in this hospital from 18 3 1965 to 29 3 1965 is a person of unsound mind, in terms of Indian Lunancy Act; 1912. He is not dangerous, 254 and/or violents by reason of Lunancy and thus unfit to be at large. The report is based on the following facts observed here : (1) Remains depressed. (2) Does not talk. (3) He is a case of Maniac depressive. (4) Psychosis and needs treatment. " On April 28, 1965, another report was given that he was still a person of unsound mind in terms of Indian Lunancy Act, 1912, but was better though still confused, and further that treatment was being continued and it may take 4 to 6 weeks more for recovery. The defence also led evidence as to his condition before the incident in question. Shyamlal, D. W. 1, son in law of the appellant stated that "the accused was not feeling well for 2 3 years. He was in such a condition that if he is sitting will remain sitting. If he is to go then he will go and if he wishes to fall in the river then he will fall. Such was the conditions of his mind that he used to set fire in his own clothes and house. " He further stated that on the day of the incident the appellant did not allow anybody ,to enter his house and had put a lock on the house and his children took their food outside, and the accused did not talk to anybody. He further stated that "prior to this incident the accused was being taken to Bhopal after tying him for the treatment of mind. He was also taken to Bhavera but the accused did not improve. " In ,cross examination it was brought out that "prior to the setting of fire the accused was neither got admitted in the government hospital nor any, report was lodged in the police station." No cross examination was directed to ascertain the nature of his illness or to bring out that he was otherwise sane. Another witness, Than Singh, D.W. 2, (the appellant is his maternal uncle) stated that the appellant "used to do whatever he thought. He used to run away wherever he liked. He used to jump in the river also. He used to enter the house of anybody. He used to lock his house. His ' children used to lie hungry outside. He used to set fire in his clothes also. On the day of occurrence the condition of the accused was worst. He did not speak to anybody on that day. " The witness, however, admitted that the accused had not been taken to Government hospital. The Trial Court also mentioned that Moolchand, P.W. 3, Madora, P.W. 4, and Dhanna, P.W. 6. admitted that the appellant remained in the khalyan throughout the period that the grass was burning till the chowkidar took him to thana and did not utter a word and did not try to run away. 255 The Trial Court, relying on the evidence of Shyamlal, D.W. 1, Than Singh, D.W. 2, and the behaviour of the accused on that day came to the conclusion that the accused was insane. He also relied on the certificates issued by the doctors, mentioned above .He further found support in the, absence of motive for the crime. He also relied on the fact that the appellant 's khalayan adjoined the khalayan which was set on fire by him and if the appellant had been sane he would not have taken the risk of having his own khalayan burnt, which was most likely. The High Court, with respect, erred in differing from the Trial Court. The High Court observed that the appellant had not examined in defence any expert in mental diseases to substantiate his plea of legal insanity. It is expecting rather a great deal from a poor villager that he should produce experts in mental diseases, specially in view of the certificates issued by the Medical authorities after he was arrested. The High Court further erred in holding that the medical reports were of no evidential value. it is true that the reports speak of the mental state of the accused at the time when the reports were issued but the High Court failed to note that the appellant was in police custody from January 23, 1965, and the police could have produced evidence to show that he was absolutely sane till the day when they sent him for medical examination. , The High Court thought that the evidence of the two defence witnesses only suggested an irrational behaviour on the part of the accused. The High Court failed to note that, according to D.W. 2, the appellant used to set fire to his own clothes and house, and this could hardly be called irrational it is more like verging on insanity. The High Court also felt it rather unsafe to rely on the testimony of the two defence witnesses because such evidence could always be procured. It was also impressed by the fact that there was no independent witness forthcoming nor was there any evidence showing that the accused was taken to Bhopal or Gwalior for treatment. The High Court observed: "Apart from this, these witnesses merely suggest that there was irrational behaviour on the part of the accused. But it has not been proved that he entertained any homicidal tendencies. The evidence adduced is merely of conduct not confirming to the accepted pattern of human behaviour. Such evidence is inadequate to establish that there was such an impairment of cognitive faculties of the accused as to render him legally insane. " 256 With respect, it is not necessary that every insane person should have homicidal tendencies. In this case he is not charged for an offence involving homicide but arson. Although the High Court discarded the medical evidence, it took account of its own observations, when it stated "We had an opportunity to observe the accused, who was produced before us by the learned counsel, and he appeared to be a man of normal understanding. We also find that in answering questions which were put to him by the court under section 342, Cr. P.C., the accused showed intelligence and care." With great respect, these are irrelevant considerations. The appeal was heard on April 25, 1968, and the incident occurred on January 22, 1965. A person can surely improve within three years. We are inclined to agree with the conclusion arrived at by the learned Magistrate. We hold that the appellant has dis charged the burden. There is no reason why the evidence of Shyam Lal, D.W. 1, and Than Singh, D.W. 2, should not be believed. It is true that they are relations of the appellant, but it is the relations who are likely to remain in intimate contact. The behaviour of the appellant on the day of occurrence, failure of the police to lead evidence as to his condition when the appellant was in custody, and the medical evidence indicate that the appellant was insane within the meaning ' of section 84, I.P.C. We accordingly allow the appeal and acquit the appellant of the offence under section 435, I.P.C., because at the time of the incident he was a person of unsound mind within the meaning of section 84 of the Indian Penal Code. His bail bond shall stand cancelled. G.C. Appeal allowed.

The Appellant was searched on alighting from a plane at the H.A.L. Aerodrome, Bangalore, on November 16, 1963 and a quantity of Gold was found on and seized from him. After obtaining sanction from the Collector under section 137(1) of the Customs Act and under Rule 126 Q of Defence of India Rules, 1962, the Superintendent of Central Excise filed a complaint against the Appellant. The Trial Court did not find any evidence establishing that the Gold had been smuggled and the Appellant was therefore acquitted of the offence under section 135 of the Customs Act. As regards the case against the Appellant under Rule 126 P(2) the Trial Court held that according to the Notification issued by the Government of India on November 5, 1963 in modification of the Notification dated January 10, 1963 issued under Rule 126 J read with Rule 126 X, either the Assistant Collector of Central Excise or the Collector of Central Excise could institute the prosecution; these officers were not authorised to delegate powers to institute prosecution. The Court, therefore, acquitted the Appellant on the view that the complaint was not filed by an Officer competently authorised. The High Court in appeal disagreed with this view holding that the Collector was lawfully empowered to authorise the Superintendent of Central Excise to prosecute the appellant. The Court convicted the appellant and sentenced him to rigorous imprisonment for six months. Dismissing an appeal to this Court, HELD : The plain reading of the relevant entries in the Notification of January 10, 1963 as amended by the Notification of November 5, 1963 clearly shows that it authorises the Collector to exercise the power and function in relation to the institution of prosecution for any offence punishable under Part XII A of the Rules referred to in r. 126Q. Keeping in view the multifarious activities of the higher officers of the Central Excise Department it seems clear that after the responsible officers of this Department not inferior in rank to the Assistant Collector had applied their mind and come to a decision as to the desirability of starting the prosecution in a given case, further steps in the mitt& of actual prosecution including the drafting and presentation of the complaint could be lawfully carried out by others. To hold otherwise would not only mean unduly straining the unambiguous statutory language but would also tend to thwart, instead of effectuating, their real purpose. [915 C F] There was no force in the contention that the charge levelled against the appellant was vague or in any way different from the one for which 909 he was convicted. In fact the appellant had admitted all the relevant facts alleged by the prosecution. The facts alleged and proved clearly brought the appellant 's case within the mischief of rule 126H(2)(d) and 126 P(2). Although under the new Gold (Control) Act 18 of 1965, which had repealed Part XII A of the Rules, there is no minimum sentence of imprisonment prescribed, the present case must be governed by the law in force at the time and therefore the minimum sentence of 6, months under rule 126 P(2) (ii) must apply. [916 D, G]

Civil Appeal Nos. 1739 1740 of 1968. (From the Judgment and Decree dated 14 2 1967 of the Delhi High Court in Regular First Appeal Nos. 5 D, and 54 D of 1958). 969 V. section Desai and Girish Chandra, for the Appellant. Sachin Chaudhary, B.P. Maheshwar and Suresh Sethi, for the Respondent No. 1 in (CA. 1739/68) and for Respondent No. 2 in 1739/68) and Respondent No. 1 in (CA. No. 1740/68). A. K. Sen and D. Goburdhan, for Respondent No. 2 in (CA. No. 1740/68). The Judgment of the Court was delivered by SHINGHAL, J. , These two appeals by certificate have been consolidated by an order of this Court dated April 15, 1969. They are directed against a common judgment of the Delhi High Court dated February 14, 1967, in Regular First Appeals Nos. 5 D and 54 D of 1958, by which the judgment and decree of the trial court dated January 13, 1958 have been set aside with costs throughout. As this has resulted in the dismissal of the suit raised by the Union of India, it has filed the present appeals. The facts giving rise to the appeals are quite simple. Harjas Rai Malhotra, defendant No. 3, is the father of Krishan Lal Malhotra, defendant No. 2. The liability of defendant No. 3 to income tax and super tax for the as sessment year 1947 48, was fixed Rs. 1,25,090/11/ in March, 1952. A demand was made for its payment, but he neglected to meet it and a certificate was issued on October 8, 1952 to the Collector of Delhi for its recovery as ar rears of land revenue. The Collector was asked to attach house No. 15, Keeling Road and house No. 9, Hailey Road in New Delhi, of defendant No. 3. Both the houses were attached on October 13, 1952. Meanwhile, defendant No. 3 appealed against the order of assessment. The Appellate Assistant Commissioner allowed the appeal on May 12, 1953, set aside the assessment and directed a fresh assessment. The order of fresh assessment was made on November 30, 1953 and the incometax demand was reduced to Rs. 1,05,769.13. The as sessments for 1944 45 and 1948 49 were completed on March 28 and 31, 1953, respectively, raising a tax demand for Rs. 1,94,738.15. A recovery certificate was issued to the Collector for the same on May 4, 1953 and the house at No. 15, Keeling Road was again attached on August 6, 1953. We are not concerned with the house at No. 9, Hailey Road, for the controversy before us relates to house No. 15, Keeling Road, hereinafter referred to as the house. That house had been ostensibly purchased by defendant No. 2 in December, 1946 for Rs. 60,000/ . He filed an application objecting to the attachment on the ground that the house belonged to him, but the Collector dismissed the objection holding that the house belonged to defendant No. 3. Defend ant No. 2 did not appeal against that order and did not question it by a suit. Thus far, the facts are not in dispute. 970 It was alleged in the plaint that the house was pur chased by defendant No. 3, "benami", in the name of his son defendant No. 2, out of his "own funds drawn from his bank account" and that 'the "full beneficial ownership, right, title and interest in the said property has always belonged and continues to this day to belong to the 3rd defendant. " The plaintiff alleged further that during the pendency of his appeal to the Appellate Assistant Commissioner against the assessment which had been made in March 1952 for 1947 48 and the assessment proceedings for 1944 45 and 1948 49, defendant No. 3 "in collusion and conspiracy with the 2nd defendant and certain other persons, and with the view, intent and purpose of defeating and delaying his creditors including the plaintiff, had recourse to diverse ways and means" as detailed in the plaint. He was thus alleged that, in February 1953, defendants Nos. 2 and 3 and five other persons purported to form a limited company known as Moksh Builders and Financiers Ltd., hereinafter referred to as the Company, which was arrayed as defendant No. 1 in the suit, with an authorised capital of Rs. 5,00,000/ divided into 5000 shares of Rs. 100/ each. There were 7 subscribers to the Memorandum and the Articles of Association of the Compa ny and each of them took 10 shares, Soon after the Appel late Assistant Commissioner made his aforesaid order dated May 12, 1953 for fresh assessment of the income tax liabili ty of defendant No. 3, a sale deed dated May 25, 1953 was brought into existence whereby defendant No. 2 "purported to convey" the house to defendant No. 1 for Rs. 1,00,000/ of which Rs. 90,000/ were payable in the shape of shares in the Company, Rs. 8,000/ payable to Sunrise .Investors Ltd. and Rs. 2000/ in cash. The plaintiff pleaded that "these transactions were all sham, colorable, and effected and entered into with the active aid, instigation and advice of the 3rd defendant and to subserve and carry out the object of placing his property, viz., No. 15, Keeling Road out of the reach of his creditors". It was further urged as fol lows, "The consideration mentioned in the sale deed of 25th May, 1953 was illusory. In effect and substances the 2nd defendant pur ported to sell a house to the I st defendant in which company in return was to become a holder of shares . of controlling interest, the shares being the alleged price. , Except for the legal fiction of the I st defendant Company being juristic person the 'sale was by the vendor to himself. None of these de vices and subterfuges could divest the 3rd ', defendant of his ownership of the property in question. The 1st defendant company by its_promoters directors and office bearers was fully aware of all the facts of the case, including the true state of the title to the property No. 15, Keeling Road, the highly embarrassed financial circumstances of the 3rd defendant the facts that he owed to the plain tiff" alone taxes to the amount of several lakhs of rupees etc. The 1st defendant is not a purchaser in good faith for consideration of the said property or without notice of the title of the 3rd defendant. On the other hand the sale deed dated 25th May, 1953 to the 1st defendant was executed by the name lender the 2nd defendant at the instance of the true owner of 971 the 3rd defendant with intent to defeat or delay the latter 's creditors, and is voidable at the option of any of such creditors includ ing the present plaintiff. " Defendant No. 1 objected to the attachment of the house for the realisation of the arrears of income tax of defend ant No. 3. The Additional Collector allowed the objection by a summary inquiry, and the Chief Commissioner dismissed the appeal on April 1, 1954. Both those officers, according to the plaintiff, proceeded on "prima facie considerations" and left the parties to seek their redress in the civil court. With these specific averments the,plaintiff raised its suit seeking leave to sue on behalf and for the benefit of itself and the other creditors, if any, of defendant No 3. It prayed for a declaration that (i) the sale deed dated May 25, 1953 was void as against the plaintiff and all other creditors of defendant No. 3, and (ii) the house is and continued to be owned by defendant No. 3. In the alterna tive, the plaintiff prayed for a declaration that the shares allotted to defendant No. 2 belonged to defendant No. 3. It also prayed for a declaration that it was entitled to pro ceed against the "properties which may be declared to be of 3rd defendant 's" by attachment and sale to realise the tax arrears due from him. A prayer was made for setting aside the orders of the Additional Collector and the Chief Commis sioner on the objection petition of defendant No. 2. Defendant No. 3 did not appear to contest the suit in spite of personal service and the trial court made an order on April 15, 1955 to proceed against him ex parte. Separate written statements were filed by the Company and defendant No. 2 The Company took the plea, inter alia, that it had been genuinely and properly formed and that it was a bona fide purchaser for value and the "transaction was quite real and genuine". It denied that the sale deed dated May 25, 1953, was executed at the instance of defendant No. 3, or that it was intended to defeat or delay his creditors. P was pleaded that defendant No. 2 was the rightful owner of the house which he had rightfully purchased with "his own money (Rupees 10,000/ ' by cheque No. 32920 dated 14.11.1946 on the New Bank of India Ltd., New Delhi drawn by his mother K. Rani and Rs. 50,000/ paid in cash before Sub Registrar)". The Company also pleaded that the transaction of sale in its favour was without notice of any body else 's claim and was binding. Defendant No. 2 filed a short written statement stating that he was the owner of the house having purchased it with "his own money". He pleaded that he had paid Rs. 10,000/ by cheque on New Bank of India Ltd., New Delhi, and Rs. 50,000/ were paid before the SubRegistrar. He pleaded further that he had no knowledge of the Collector 's order and that his order, if any, was ex parte. As regards the Company, defendant No. 2 pleaded that it was a real and genuine Company and that out of his shares worth Rs. 90,000/ he had sold shares worth Rs. 74,000/ . 12 1338SCI/76 972 The trial court found that the house was purchased "benami" in the name of defendant No. 2, by defendant No. 3 with his own money and that the sale of the house to the Company by defendant No. 2, was "sham and was effected in order to defeat or to delay the creditor of defendant No. 3 and that defendant No. 1 had no real existence. " The trial court therefore granted a decree declaring that the sale deed dated May 25, 1953 was void as against the plain tiff and all other creditors, if any, of defendant No. 3 and that the House" is and continues to be owned by the 3rd defendant and that the plaintiff is entitled to proceed against the said properties by way of attachment and sale to realise the tax arrears due from him. " The trial court set aside the orders dated October 9, 1953 of the Additional Collector on the objection petition of defendant No. 2 and of the Chief Commissioner dated April 1, 1954. As the High Court has set aside the judgment ' and decree of the trial court, the present appeals have been filed by the plaintiff as aforesaid. We shall refer to the findings of the High Court as and when necessary. The main point in controversy was whether the house was purchased by defendant No. 3 'benami ' in the name of defend ant No. 2? This was the subject matter of issue No. 1 in the trial court. We have made a reference to the plaintiff 's plea that the purchase was "benami" and payment was made out of the funds of defendant No. 3, which were drawn by him from his own account. As has been mentioned, defendant No. 3 did not care to appear and contest the suit even though he was served and knew the nature of the plaintiff 's claim and the basis thereof. Defendant No. 2 appeared at the trial and pleaded that he purchased the property "with his own money". The source of the money was within his special knowledge, but it will be recalled that he contended himself by pleading that Rs. 10,000/ were paid by him by a cheque and Rs. 50,000/ were paid before the Sub Registrar. We have made a reference to the plea of the Company in this respect. It is no body 's case that the sale of the house to defendant No. 2 was fictitious and that the title of the transferor was not intended to pass. What we have to examine is whether the title, on sale of the house in Decem ber 1946, was transferred to defendant No. 3, who was. the real purchaser, and not to defendant No. 2, who was only the ostensible transferee and was no more than a "benamidar". It has been held in Gangadara Ayyar and others vs Subrarnania Sastrigal and others(1) that "in a ease where it is asserted that an assignment in the name 011 one person is in reality for the benefit of another, the real test is the source whence the consideration came" It is also necessary to examine in such eases who actually has enjoyed the benefits of the transfer. Both these tests were applied by this Court in Meenakshi Mills, Madurai vs The Commissioner of IncomeTax Madras.(2) It is therefore necessary, in the present case, to (1) A I.R. (2) ; 973 find out the source of the consideration for the. transfer, as also to find out who has been in enjoyment of the bene fits of the transaction. It is equally well settled that, although the onus of establishing that a transaction is 'benami ' is on the plaintiff, 'where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable proba bilities and legal inferences arising from proved or admit ted facts. " The burden of proof is, however not static, and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by 'either side, i.e. on the evidence on record. As has been held by this Court Kalwa Devadattam and others vs The Union of India and oth ers(1) that where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus and out of place, and the truth or otherwise of the case must. always be adjudged on the evidence led by the parties. This will be so if the court finds that there is no difficulty in arriving at a definite, conclusion. It is therefore necessary to weigh the evidence in this case and to decide whether, even if it were assumed that there was no conclusive evidence to establish or rebut the "benami" allegation, what would, on a careful assessment of the evi dence, be a reasonable probability and a legal inference from relevant and admissible evidence. The sale in question was admittedly made in December 1946. Defendant No. 2 had admitted in his statement date May 29, 1957 that he was born in 1928. He was therefore 18 years old at that time. His father (defendant No. 3) was also alive at that time, and it is not his case that he (defendant No. 2) had any money ' of his own, for he has stated that he got Rs. 10,000/ from his mother and Rs. 50,000/ from his grandfather to constitute the sum of Rs. 60,000/ for which he purchased the house. It is however a significant fact that the defendant No. 2 did not disclose any such source of the money in his written state ment dated April 15, 1955. It took ,him two years to come out with such a case. He was given an opportunity, during the course of his cross examination, to explain the omission regarding the disclosure of the source of the sum of Rs. 50,000/ in his written statement, but he contented himself by saying that he could not give "any reason as to why he (I) omitted to mention in the written statement about receipt of Rs. 50,000/ from ' his (my) grandfather". Similarly he failed to explain why he did not mention in his written statement that the cheque for Rs. 10,000/ was drawn by his mother. It is true that there is a mention in document exhibit D1 that out of the sum of Rs. 60,000/ "a sum of Rs. 10,000/ has already been paid to the vendor by the vendee by cheque No. 32920 dated November 14, 1946, on the New Bank of India Ltd., New Delhi," but it is again signifi cant that while the document states that the payment of Rs. 10,000/ was made by (1) ; 974 the vendee (defendant No. 2) 'by the aforesaid cheque, he has stated in the trial court that the cheque for Rs. 10,000/ was issued by his mother, in favour of the vendor. He was not able to explain the discrepancy: and merely stated that his written statement (which did not disclose the source and the name of the person who drew the cheque for Rs. 10,000/ ) was correct. If it had been a fact that defendant No. 2 really obtained a cheque for Rs. 10,000/ from his mother, in the vendor 's name, and, if it was not really a cheque drawn by his father, there was nothing to prevent him from establishing that f. act with reference to the counter foil of his mother 's cheque book or her account with the bank. The defendant has also not stated whether he repaid the money to his mother and, if so, when, or whether it was a gift to him and, if so, why, when she had another son also. As it is, it cannot be said that defendant No. 2 has been able to establish that it was he who paid the sum of Rs. 10,000/ to the vendor. According to the written statement of defendant No. 2, the balance of Rs. 50,000/ was paid before the Sub Regis trar. He has stated that about 7 or 8 days before his death, his grandfather Sohna Mal (who died in October 1946) paid him Rs. 50,000/ ' after taking. out the money which was "lying underneath his pillow. " He could not however stand the test of cross examination, for he could not state where the money was kept by his grandfather and whether, he at all had a bank account. The High Court did not care to examine the reliability of the defendant 's evidence regarding the source from which he received Rs. 60,000/ even though it was an important question and had been examined by the trial court with reference to all the other evidence on the record including the statement of Amar Nath Sharma D.W.3. We find that there is no reason for us to disagree with the trial court 's view in the matter, based on the parol evi dence on the record. In arriving at this conclusion, we have not relied on that part of the trial court 's judgment where it has made a reference to the admission of defendant No. 3, for we shall deal with them separately. The reason able preponderance of probability therefore is that defendant No. 2 has failed to establish the source of the consideration of Rs. 60,000/ even though it was art impor tant fact within his special knowledge. He could not therefore be said to be the real owner of the house. It is also an important fact that defendant No. 2 has failed, to prove that he enjoyed the benefit of the sale. He claimed that he had shown the rent of the house in his income tax returns, but he did not produce any rent note. Even the tenant who was 9aid to be living in the house on the date of the sale, has not been examined. While the trial court has examined this aspect of the controversy, the High Court has missed it altogether. The High Court went by the view that statement exhibit P. 1 of defendant No. 3, the income tax return of defendant No. 3 showing the house as his property, his statement of account and the assessment order for the year 1948 49 showing the same, were not admissible 975 in evidence against defendant No. 2 and that there was no evidence either of the plaintiff or the defendants on which a finding as to the "benami" nature Of the transaction could be based. That decision is obviously based on a misap preciation of the law relating to "benami" transactions for, as has been stated, it was necessary to find out whether it was defendant No. 3 who had enjoyed the benefit of the transaction. Moreover, the finding of the High Court is against the evidence on the record, and must be set aside. We have therefore no hesitation in holding that the purchase of the house was "benami" and that its ostensible owner defendant No. 2 was not the real owner but was a "benamidar. " The ancillary question is as to who was the real owner of the house for whom defendant No. 2 was the "benamider"?. We have not taken the admissions of defendant No. 3 into consideration so far, but they have a direct bearing on the question now before us. lie recorded a state ment exhibit P. 1 dated August 12, 1950 before Puran Chand P.W. 1, Income tax Officer, which has been proved by the wit ness. It has been stated there as follows, "I purchased 15 Keeling Road on 12.12.46 for Rs. 60,000/ in the name of my son (Major Krishan Lal). This money was paid out of my bank accounts and I have shown the details and payments from my bank pass books. " 0 Then there is document exhibit P. 6 which is a copy. of the personal account of defendant No. 3. It was filed in connection with the return of his income tax for 1947 48. An attempt was made to argue that the document had not been proved or marked as an exhibit. We have seen the original document and we have no doubt that the whole of it was tendered in evidence and was marked as exhibit P. 6. The identity of the document has been established by the state ment of Puran Chand P.W. 1 that the scribbling on it was made by him. The document has therefore been proved beyond doubt. It shows that it was defendant No. 3 who spent Rs. 60,000/ on "property" in that assessment year. Both exhib its P. 1 and P. 6 go to prove that the house was purchased by defendant No. 3 out of his own funds in the name of his son defendant No. 2 who, it will be recalled, was admittedly only 18 years old at that time and did not have any money of, his own. Moreover defendant No. 3 showed the income accruing from the house as his own income in his return for the years 1947 48 and 1948 49. Counsel for the respondents have urged for the exclusion of these admissions. The main attack was that they were admissions of a co defendant and were not admissible against defendant No. 2. As has been stated, we have not taken them into consideration as evi dence against that defendant. There is however no force in the other argument that they are not admissible in evidence against defendant No. 3 as he was not confronted with them in the, trial court and they were not adverse to the inter est of their maker at the time when they were made. It has 976 been held by this Court in Bharat Singh and another vs Bhagirath(1) that an admission is substantive evidence of the fact admitted, and that admissions duly proved are "admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. " In taking.this view this Court has noticed the decision in Ajodhya Prasad Bhargava vs Bhawani Shanker Bhargava and another(2) also. The point has been considered and answered as follows in Wigmore on Evidence, Volume IV, 1048 (at page 3), "The theory of the Hearsay rule is that an extra judicial assertion is excluded unless there has been sufficient opportunity to test the grounds of assertion and the credit of the witness, by cross examination by the party against whom it is offered (post, 1362); e.g. if Jones had said out of court. "The party opponent Smith borrowed this fifty dollars", Smith is entitled to an opportunity to cross examine Jones upon that assertion. But if it is ,Smith himself who said out of court, I borrowed this fifty. dollars, cer tainly Smith cannot complain of lack of opportunity to cross examine himself before his assertion is admitted against him. Such a request would be absurd. Hence the objection of the Hearsay rule falls away, because the very basis of the rule is lacking, viz, the need and prudence of affording an opportunity of crossexamination. " Moreover, the defendant No.3 had full opportunity,. to appear and defend himself, but he did not do so and the case proceeded against him ex parte. The plaintiff even tried to examine him as his own witness, but his appearance could not be secured in spite of the prayer for the issue of summonses and a warrant. There is therefore force in the argument to the contrary. So also, there is no force in the argument that the aforesaid admissions or statements of defendant No. 3 could not be read against him as they were not adverse to his interest when made. There is no such requirement of the Evidence Act and the argument is untenable as it unreasona bly restricts the opportunity to prove the true state of affairs on the party 's own showing and to demolish his subsequent claim as self contradictory. This point has also been dealt with in Wigmore on Evidence, 1048 (at page 4) in this way, "It follows that the subject of an admission is not limited to facts against the party opponent 's interest at the time of making it. No doubt the weight of credit to be given to such statements is increased when the fact stated is against the person 's interest at the time; but that circumstance has no bearing upon their admissibility. On principle, it is plain that the probative reason why a party opponent 's utterance is sought to be used against him is ordinarily the reason noted above, in par. (1)b,. viz. that it exhibits (1) ; (2) A.I.R. 1957 All. 1. 977 an inconsistency with his present claim, thus tending to throw doubt upon it, whether he was. at the time .speaking, apparently in his own favour or against his own interest. ' The contrary view, has been characterised by Wigmore as "a fallacy. in the fullest sense. " Another argument which has been advanced against the admissibility of the aforesaid admissions of defendant No. 3 is that they could be evidence only in terms of section 33 of the Evidence Act. That argument is also quite untenable because section 33 deals with statements of persons who cannot be called as witnesses, and does not restrict or override the provisions relating to admissions in the Evidence Act. The High Court also committed a similar error of law in its impugned judgment. The aforesaid admis sions of defendant No. 3 are therefore satisfactory evidence to prove.that he himself was the owner of the house and his son, defendant No. 2 was merely a "benamidar" for him. It would thus appear that the finding of the trial court on issue No. 1 which dealt with the question whether the house was purchased by defendant No. 3 "benami" in the name of defendant No. 2, was correct and should be restored as the High Court 's finding to the contrary has been viti ated by the substantial errors of law mentioned above. The other important question is whether the sale of the house in favour of the Company (defendant No. 1 ) was a sham transaction and was effected to defeat and delay the creditors of defendant No. 3. This was the subject matter of issue No. 2 and the trial court 's finding in affirmative has not even been examined by the High Court. We find that the admitted facts of the case are by themselves sufficient to show that the finding of the trial court is justified and does not call for any interference. Defendant No. 3 was assessed to income tax for a sum of Rs. 1,25,090/11/ for assessment year 1947 48 in March 1952. Defendant No. 3 failed to pay that amount on demand and a recovery certificate was issued on October 8, 1952. The house was therefore attached on October 13, 1952. Defendant No. 2 raised an objection, and prayed for the release of the house. The Collector rejected the objection on March 3,. No appeal, or other remedy was sought against .that order. The Appellate Assistant Commissioner however allowed the appeal of defendant No. 3 against the assessment of income tax and ordered a fresh attachment by his order dated May 12, 1953. In the meantime, the Company was incorporated in February, 1953. The assessment of incometax for the years 1944 45 and 1948 49 was completed in March 1953 raising the tax demand to Rs. 1,94,735.15, and a recovery certificate was issued on May 4, 1953. It was in these circumstances that defendant No. 2, who had failed to obtain an order for the release of the house as aforesaid, has tened to sell it to the Company 22 on May 25, 1953. As has been stated, a fresh recovery certificate was issued to the Collector on May 4, 1953 and the house was again attached on August 6, 1953. These facts speak for themselves and are quite sufficient to justify the trial court 's finding that sale of the house to the Company was a sham transaction and arose out of the anxiety to save the house some how from sale for realisation of the income tax. The Company was in fact dominated by defendant No. 2 and his close relations and did not even pay the sale price in cash. It is also significant that the shares of the other 'relations were insignificant. Moreover the. Company could not lead evidence to show that it was able to transact any substantial business whatsoever. We have therefore no reason to disagree with the trial court 's finding that the Company was formed just to transfer the house to it in an effort to save it from attachment and sale for realisation of the income tax arrears of defendant No. 3. The finding of the trial court on the issue is quite correct and the High Court committed a serious error of law in not examining this aspect of the matter at all even though it had a great bearing on the controversy. In the result, we are constrained to allow the appeals. The impugned judgment and decree of the High Court dated February 14. 1967 are set aside and the decree of the trial court is restored with costs throughout one hearing fee. V.P.S. Appeals allowed.

The respondent filed this suit against the order of the Registrar of Public Trust, Amraoti, declaring the Ganjanan Maharaj Sansthan of Mangrul Dastagir to be a public trust. The Additional District Judge 's order dismissing the suit, was Upheld in appeal by the Single judge of the High Court on account of the respondent 's failure to serve a notice under section 80 C.P.C. Allowing a Letters Patent Appeal, a Full Bench of the High Court held that section 80 C.P.C. was not applicable to suits filed under section 8 of the (M.P.) Public Trusts Act, 1951. Allowing the appeal, the Court HELD: Section 8 of the Act indicates that the suit contem plated there is against the public officer in his official capacity within the meaning of Section 80 of the Code of Civil Procedure. The words "Act purporting to be done in official capacity" apply to non feasance as well as to misfeasance. No distinction can be made between acts done illegally and in bad faith and acts done bonafide in offi cia1 capacity. [994 C, 995 D] Sawai Singhai Nirmal Chand vs Union of India ; referred to. Bhagchand Dagadusa vs Secretary of State for India in Coun cil and others , Prasaddas vs Bennerjee I.L.R. , applied.

es of services cannot be applied towards objects of general public utility as part of general revenues, the converse is not valid. General Public revenues can, with justification, be utilised to meet, wholly or in a substantial part, the expenses on the administration of civil justice. [194G H] (14) The prescription of such high rates of court fees even in small claims as also without an upper limit in larger claims is perilously close to arbitrariness, an inconstitutionality. [194E] (15) Though the Court has abstained from striking down the legislation, yet, it appears to the Court that immediate steps are called for and are imperative to rationalise the levies. [195C] PG NO 161 & CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) Nos. 2604 06 of 1988 etc. From the Judgment and Order dated 6.11.1987 of the Karnataka High Court in W.P. Nos. 3138 of 1987, 12784 and 18359 of 1986. F.S. Nariman, B.R.L. Iyengar, L.N. Sihna, K.K. Venugopal, Soli J. Sorabjee, Dr. Y.S. Chitale, U.R. Lalit, M.S. Nesargi, S.K. Dholakia, A.5. Bobde, Adv. , Aruneshwar Gupta, B.P. Gupta, Sudhir Gupta, Inderbit Singh, L.R. Singh, Rakesh Khanna, R.P. Singh, P.H. Parekh, Sanjay Bhartary, S.S. Javali, R. Ramachandran, P.G. Gokhale, Raja Venkatappa Naik, N.N. Sharma, P. Mahale, S.K. Kulkarni, D.L. N. Rao, Surya Kant, E.C. Vidvasagar, R.B. Mehrotra, D.N.N. Reddy, N. Nettar, Kailash Vasdev, G.L. Rawal, S.C. Birla, Miss C.K. Sucharita, Mohan Katarki, Mrs. Kiran Suri, K.M.K. Nair, S.N. Bhat, R.P. Wadhwani and A.S. Bhasme for the Petitioners. Kuldip Singh, Additional Solicitor General, K.N. Bhat, D.R. Dhanuka, Anil Mehta, P.R. Ramasesh, Badri Das Sharma, K. R. Dhanuka, R.C. Misra and Dr. Meera Agarwal for the Respondents. The Judgment of the Court was delivered by VENKATACHALIAH, .J. The point in these appeals is the recurring and vexed theme of the policy and legality of the levy of Court fees ad valorem on the value or amount of the subject matter of suits and appeals without the prescription of any upper limit under the provisions of the Karnataka Court Fees and Suits Valuation Act 1958 ("Karnataka Act ' for short). The Rajasthan Court Fees and Suits Valuation Act, 1961 (Act 23 of 19f)]) (`Rajasthan Act ' for short) and the Bombay Court Fees Act, 1959 (`Bombay Act ' for short). So far as the `Bombay Act ' is concerned, the point raised in the concerned appeals is a limited one, confined to the question of the validity of Section 29(1) read with entry 10 of the First Schedule to the `Bombay Act ' which, without reference to the upper limit of Court Fee of Rs.15,000 prescribed for all other suits and proceedings, requires payment of ad valorem Court fee on proceedings for grants of probate and letters of administration. One of the grounds of challenge so far as this provision in the `Bombay Act ' is concerned, is the constitutional impermissibility of an unlimited exaction by way of court fee, which is common to other appeals as well. The other contention against the PG NO 162 validity of Section 29(1) read with Entry 10 of the First Schedule to the `Bombay Act ' is based on Article 14 of the Constitution on the ground of discrimination as between the proceedings for grant of probate and Letters of Administration on the one hand and all other suits and proceedings respecting which an upper limit of Rs.15,000 is fixed under the statute, on the other. The present batch of appeals and Special Leave Petitions comprise of a large number of cases arising under the said three Statutes. We may, however, refer to the facts of some of the cases which could be taken to be typical and representative of all other cases of each group. Special Leave Petition 13344 of 1988 typifies, and is representative of he appeals and Special Leave Petitions at arise out of the Rajasthan Court Fees and Suits Valuation Act, 1961. The petition arises out of and is directed against the common order dated 16th October, 1987 of the Division Bench of the Rajasthan High Court in Division1 Bench Civil Writ Petition No. 474 of 1984 and a large number of writ petitions involving the same question. In Writ Petition No. 474 of 1984, the present appellant The State Bank of India challenged before the High Court the Constitutional validity of the provisions of Section 20 read with Article 1 Schedule 1 of the `Rajasthan ,Act which prescribed and authorised the levy of court fees on plaints or written statements pleading a set off or counter claim or memoranda of appeals presented to Courts an uniform ad valorem impost of Rs.5 for every hundred Rupees or part thereof on the amount or value of the subject matter in excess of Rs.5,000. On the first slab of Rs.5.000 however certain rates are also prescribed. We may. briefly. trace the course of development of the law as to Court fee in Rajasthan. The Rajasthan Ordinance 9 of 1950, adapted and extended to the territories of Rajasthan with effect 1.3.1950, the Court Fees Act, 1870 (Central Act, 1870). The provisions of the Central Act, as adapted and extended to Rajasthan, were amendment from time to time till 1.11.1961 when the present `Rajasthan Act ' was enacted and promulgated. Prior to 1.11.1961, at the law the stood. the levy of court fee was subject to the maximum of Rs.7,500. This ceiling was done away with under the present Rajasthan Act and Court fee ad valorem at 5%, without any upper limit was imposed under the impugned provisions. On 25.4.1984 the appellant bank instituted. in the Court PG NO 163 of District Judge, Jaipur City, a suit for recovery of a sum of Rs.5,04,75,826 from the defendant in the suit viz., The Jaipur Spinning and Weaving Mills Ltd. The Court Fee payable on the said plaint under Section 20 read with Article 1 of the Schedule 1 of the `Rajasthan Act ' was stated to be Rs.25,23,860. Incidently, it was pointed out by Shri F.S. Nariman, learned Senior Advocate for the appellant that the court fee payable on this plaint alone would amount approximately to 1/7th of the total estimated collection of court fee for the year 1983 84 which was estimated at Rs.176.41 lakhs in the State. Special Leave Petitions 832 of 1988 and 833 of 1988 which are representative of the Karnataka cases arise out of and are directed against the common order dated 6.1.1988 of the Division Bench of the Karnataka High Court upholding the validity of the corresponding provisions of the Karnataka Court Fees and Suit Valuation Act, 1958 (`Karnataka Act ' for short) which similarly impose an ad valorem court fee on the plaints, written statements, pleading set of or counter claims, or memoranda of appeals presented to any court, an at valorem court fee at the uniform rate of Re.1 for every Rs.10 of the amount. or value of the subject matter in dispute without prescribing any upper limit. The Bank of Baroda, the petitioner in the Special Leave Petition 832 of 1988, questions the correctness of the view taken by the Karnataka High Court in the large batch of cases disposed of by it upholding the constitutionality of the provisions in the `Karnataka Act ' . Appellant bank had brought, in one of the civil courts in Karnataka, a suit for recovery of Rs.16,97,811.57 from the defendants therein and was called upon to pay a court fees of Rs.1,69,792 on the plaint. The provisions of section 20 read with Article 1 of Schedule 1 of the `Karnataka Act ' are in pari materia with Section 20 read with Article 1, Schedule 1 of the `Rajasthan Act ' except for the rate of fee which is substantially higher under the `Karnataka Act '. The questions that arise in the appeals and Special Leave Petitions from Karnataka and Rajasthan are substantially similar. In Civil Appeal No. 1511 of 1988, the State of Maharashtra has come up in appeal against the Judgment dated 1.2.1988 of the Division Bench of the Bombay High Court affirming the order dated 20.11.1987 of the Learned Single Judge striking down the provisions of Section 29(1) read with entry 10 of Schedule 1 of the `Bombay Act ' in so far as PG NO 164 they purport to prescribe an ad valorem court fee, without any upper limit, on grants of probate, letters of Administration etc. , while in respect of all other suits, appeals and proceedings an upper limit of court fee of Rs. 15,000 is prescribed under the `Bombay Act '. The Bombay High Court has, by its judgment now under appeal held this prescription of ad valorem court fee without any upper limit on this class of proceedings alone constitutionally impermissible in that it seeks to single out this class of litigants to share a disproportionately higher share of the burden of fees while all other litigants, whatever the value of their claim or complexity of the question raised in their cases be, are not required to pay beyond Rs.15,000 which is fixed as the upper limit in all other cases. In W.P. No. 1105/86 before the High Court of Bombay, from which C.A. No. 1511/88 now before us arises, Mrs. Jyoti Nikul Jariwala and Jaiprakash Mungaturam Bairajra, Respondents herein, in their capacity as Executrix and Executor respectively as also the Trustees, under the Last Will and Testament dated 5.3.1985, said to have been executed by a certain Harihar Jethalal Jariwala alias Sanjiv Kumar had sought probate of the said will. They challenged, in the writ petition before the High Court, the order dated 23.7.1986 of the Prothonotary and Senior Master of the High Court of Bombay made in the said probate proceedings requiring from the said Executors a probate court fee of Rs.6,15 814.50 as a condition for the grant of the probate. The said Executors and Trustees challenged the legality and validity of this Memo and also the relevant provisions of the `Bombay Act ' pursuant to and under the authority of which the said order came to be made. Learned Single Judge of the High Court struck down the impugned provisions and the Division Bench has upheld the decision of the Learned Single Judge. We have heard Sri l .N. Sinha. Sri F.S. Nariman, Sri K.K. Venugopal, Sri Shanti Bhushan, Sri B.R.L. Iyengar. learned Senior Advocates for the appellants in Karnataka and Rajasthan batch of cases and Sri Kuldip Singh, Additional Solicitor General and Sri Badridas Sharma, Senior Advocate for the State of Karnataka and Rajasthan respectively. Sri Bobde, learned Advocate General, Maharashtra and Sri S.K. Dholakia, Senior Advocate appeared in support of the appeals of the State of Maharashtra. PG NO 165 7. Though a number of contentions covering a wide field appears to have been raised and argued before the High Courts, the submissions of Learned Counsel before us were, however, less expensive and centred around what was stated to belong to certain basic values and ideals of administration of justice in a Welfare State and to the importance of access to justice and what in the context of the concept of a `fee ' is likely to happen to the concept if an ad valorem exaction without any upper limit whatsoever is pushed to a point where the correlationship between the levy and the service very nearly breaks down. It ceases, it is said, to be a service and becomes a disservice. Emphasis was also placed on the basic obligations of the State to administer justice within its territories and on the Directive Principles of State Policy in Article 39A which enjoins the State to ensure that opportunities of securing justice are not denied to any citizen by reason of economic or other disabilities. It was contended that in a system of Administration of Justice which was already encumbered by heavy expenses and long delays, the imposition of court fees at nearly 10% of the value of the subject matter in each of the courts through which the case sojourns before it reaches a finality, would seriously detract from fairness and justness of the system. The levy ad valorem irrespective of the nature and quality of the adjudicative process the case attracts and without reference to the demands that it makes on the judicial time would be, it is urged, demonstrably unfair and it would be legitimate to acknowledge that somewhere in the trail of this unlimited levy the sustaining correlation between the levy and the service rendered is bound to snap. It was urged that the exaction of ad valorem fee uniformally at a certain percentage of the subject matter without an upper limit or without the rates tapering down after a certain stage onwards would negate the concept of a fee and par take of the character of a tax outside the boundaries of the State 's power. It is true that the twin evils that be devil the legal system and the administration of justice are the laws ' delays and expenses of litigation which have become almost proverbial. Court tee should not become another stifling factor aggravating an already, explosive situation. Constitutional ethos and the new social and economic order grimly struggling to be born lay great store by the peaceful social or economic change to be achieved through the processes of law. If social and economic change is of high constitutional priority, then, their effectuation and realisation which are directly proportional to the availability and efficacy of expeditious and unexpensive legal remedies, must also as a logical corollory, receive PG NO 166 the same emphasis in priorities: The public importance of the question and the public interest the policy of court fee evokes are reflected in the trenchant humour of A.P. Herbert 's "More Uncommon Law" from the words of the Judge in the fictional Hogby vs Hogby, "That if the Crown must charge for justice, at least the fee should be like the fee for postage that is to say, it should be the same, however long the journey may be. For it is no fault of one litigant that his plea to the King 's judges raises questions more difficult to determine than another 's and will require a longer hearing in court. He is asking for justice, not renting house property. " There is also in the following exchanges between the Attorney General and the Judge the echo of the argument that State whose primary duty is to administer justice, should do so out of public revenues and not put justice up for sale: The Attorney General: "As to that, milord, may I suggest one possible line of thought? The Crown, in this connection, means the whole body of tax payers. Would it be fair and equitable if the general tax payer had to provide all the facilities of the courts for the benefit of the litigant? The Judge: "Why not? Everybody pays for the police, but some people use them more than other. Nobody complains. You don 't have to pay a special fee every time you have a burglary, or ask a policeman the way. I don 't follow you, Sir Anthony. I will go further. I hold that the Crown not merely ought not, but is unable, to act in this way, by reason of the passage in the Great Charter which I have quoted. The Rules of Court, then, which purpose to impose these charges are ultra vires, unconstitutional, and of no effect: and Mr. Hogby may continue to decline to pay them. ' 9. The fortieth clause of the Great Charter of declared that Justice shall not be sold, denied or delayed: "Nulli Vendemus, nulli negabimus, aut differemus rectum aut justiclam. " What was implicit in the need for this promise was that royal justice was, otherwise, popular; but the PG NO 167 complaint was that it was too dear and it was slow in coming. The subsequent course of history of the administration of justice in England shows that the Magna Carta did not wholly stop the evils of delays in, and expensiveness of, Royal Justice but it did, after all, do something, perhaps something substantial, to cheapen justice and stop the abuses which were rampant in King John 's Reign: (See History of English law 57 58). Dr. R.M. Jackson "Machinery of Justice in England" Fifth Ed., 321, points out the dependence of Royal Justice in England in part atleast, on the profits of its administration earned: "In the past the growth of royal justice was partly due to the profits that accrued from exercising jurisdiction. The early itinerant justices were more concerned with safeguarding the King s fiscal rights than with the trial of ordinary actions. A law court was expected to pay for itself and show profit for the king. It is some time since justice has been a substantial source of income, but the old survives in the idea that the courts ought not to be run at a loss. (Emphasis supplied) The court fee as a limitation on access to Justice is inextricably inter twined with a "highly emotional and even evocative subject stimulating visions of a social order in which justice will be brought within the reach of all citizens of all ranks in society. both those blessed with affluence and those depressed with their poverty. " It is, it is said, like a clarion call to make the administration of civil justice available to all on the basis of equality, equity and fairness with its corollary that no one should suffer injustice be reason of his not affording or is deterred from access to justice. The need for access to justice, recognises the primordeal need to maintain order in society disincentive of inclinations towards extra judicial and violent means of settling disputes. On this a learned authority "access to Justice" by Cappellbtti. Vol . 1, Book 1,419 says: "The need for access to justice may be said to be two fold; first, we must ensure that the rights of citizens should be recognised and made effective for otherwise they not be real hut merely illusory; and secondly we must enable legal disputes, conflicts and complaints which inevitably arise in society to be resolved in an orderly way according to the justice of the case so as to promote. PG NO 168 harmony and peace in society, lest they foster and breed discontent and disturbance. In truth, the phrase itself, "access to justice", is a profound and powerful expression of a social need which is imperative, urgent and more widespread than is generally acknowledged. The stipulation of court fee is, undoubtedly a deterrent to free "access to justice", but one of the earlier avowed objects of court fee was stated to be as was done in the preamble of the Bengal Regulation which in 1795 imposed high court fees discouragement of litigation, particularly the speculative and the frivolous variety. Lord Macaulay called that Preamble "the most eminently absurd Preamble, that was ever drawn". The view of Macaulay "The Crisis of the Indian Legal System ' ' By Upendra Baxi, 54, on the subject are worth recalling: "If what the courts administer be justice, is justice a thing which the Government ought to grudge to the people? vexatious suits should be instituted. But it is an evil for which the Government has only itself and its agents to blame, and for which it has the power of proving a most efficient remedy. The real way to prevent unjust suits is to take care that there shall be just decision. No man goes to law except in the hope of succeeding. No man hopes to succeed in a had cause unless he has reason to believe that it will be determined according to bad laws or by bad judges. Dishonest suits will never he common unless the public entertains an unfavourable opinion of the administration of justice. And the public will never long entertain such an opinion without good reason . (The imposition of court fees) neither makes the pleadings clearer nor the law plainer, nor the corrupt judge purer, nor the stupid judge wiser. It will no doubt drive away the honest plaintiffs who cannot pay the fee. But it will also drive away dishonest plaintiffs who are in the same situation". (Emphasis supplied). The Krishna Iyer Committee on Legal aid also said: Something must be done, we venture to state, to arrest the escalating vice of burdensome scales of court fee. That the State should not sell justice is an obvious proposition PG NO 169 but the high rate of court fee now levied leaves no valid alibi is also obvious. The Fourteenth Report of the Law Commission, the practice of 2 per cent in the socialist countries, and the small standard filing fee prevalent in many Western Countries make the Indian position indefensible and perilously near unconstitutional. If the legal system is not to be undemocratically expensive, there is a strong case for reducing court fees and instituting suitors fund to meet the cost directed to be paid by a party because he is the loser but in the circumstances cannot bear the burden . (See P. 35) 11. The proverbial costs of litigation has its own dimensions of unpredictability. Even as the outcome of a litigation is said to depend on the "glorious uncertainties of the Law" the size of the bill of cost a litigant has to foot is, not so, gloriously foreseeable. The Evershed Committee Report said: It is notoriously impossible to count the costs of litigation beforehand. It is difficult enough for either party to forecast what his own costs are likely to be, since much depends on the manner in which the other side conducts the case. It is utterly impossible to forecast what the other side s cost will be, and this means that no litigant can have the least idea of what he will have to pay if he loses the case. " Small claims and the small litigants are at a special disadvantage in the matter of costs. The expenses of litigation very nearly consume the claim itself. This imparts to the policy formulation behind the levy of court tee the imperative, of having lower fees for lesser claims. This is an analysis of costs in small claims: `Access to Justice, Vol. Book 1; 13. Claims, involving relatively small sums of money suffer most from the barrier of cost. If the dispute is to be resolved by formal court processes, the costs may exceed the amount in controversy or, if not, may still eat away so much of the claim as to make litigation futile. The data assembled for the Florence Project show clearly that the ratio of costs to amount in controversy steadily increases as the financial value of the claim goes down. In Germany, for example, the cost of litigating a claim for about U.S. PG NO 170 $100 in the regular court system is estimated to be roughly U.S. $150, even though only a court of first instance is involved, while the cost for a U.S. $5,000 claim, involving two instances, would be about U.S. $4,200 still very high but a substantially smaller proportion of the claim 's value. Examples need not be multiplied in this area; clearly, small claims problems require special attention if access is to be obtained. (Emphasis supplied). Conversely, those who are endowed with considerable financial resources that can be utilised for litigation have obvious advantages in pursuing or defending claims by or against them. It is said: "Access to Justice". Vol. 1. Book 1 15. "Persons or organisations possessing , or relatively considerable, financial resources than can be utilized for litigation have obvious advantages in pursuing or defending claims. In the first place they can afford to litigate. They are. in addition, able to withstand the delays of litigation. Each of these capabilities, if in the hands of only one party, can be a powerful weapon; the threat of litigation becomes both credible and effective. Similarly one of two parties to a dispute ma be able to outspend he other and, as a result present his arguments more effectively. Passive decision makes, whatever their other, more admirable, characteristics, clearly exacerbate this problem by relying on the parties for investigating and presenting evidence and for developing and arguing the case" ( Emphasis supplied). 12 These are the realities in the back ground of which the impact of court fees is to he considered. Indeed all civilised Governments recognise the need for access to justice being free. Whether the whole of the expenses of administration of civil justice also in addition to those of criminal justice should be free and not entirely by public revenue or whether the litigants should contribute and it so. to what extent, are matters of policy. These ideals are again to be balanced against the stark realities of constraints of finance before any judicial criticism of the policy acknowledgment should be made of the Government 's power to raise the resources for providing the services from those who use and benefit from the services. The idea that there should be uniform fixed fee for all cases, instead of PG NO 171 the ad valorem system, has its own nettling problems and bristles with anomolies. How far these policy considerations have an adjudicative disposition and how far courts can mould and give direction to the policy is much debated. The Directive Principles in Article 39A are, no doubt, fundamental in the governance of the country, though not enforceable in courts of law. The following observations of Chinappa Reddy, J. in U.B.S.E. Board vs Hari Shanker, AIR 1979 SC 69 recognise the limitations of courts: ". .the principles are `nevertheless fundamental in the governance of the country ' and `it shall be the duty of the state to apply these principles in making laws '. Addressed to courts, what the injunction means is that while courts are not free to direct the making of legislation, courts are bound to evolve affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy." (Emphasis supplied) It is in the light of these conflicting claims and interests that the propositions in the case would require to be resolved. On the contentions urged at the hearing, the following points fall for determination, the first three in Karnataka and Rajasthan cases, and the last in the appeals arising under the Bombay Act '. : (a) Whether the levies of court fee under the "Karnataka Act" and the "Rajasthan Act" do not satisfy the requirements of the concept of a `fee ' but par take the character of a `tax ', in as much as that the correlationship between the fee and the value of the services by way of quid pro quo, is not established. (b) Whether, even if the totality of the expenses on the administration of civil justice and the totality of the court fee collected show a broad correlation, the levy of court fees on ad valorem basis, without an Upper limit, renders the impost a tax, in as much as having regard to the very nature of the service, which consists of adjudication of disputes, a stage is inevitably reached after and above which an ad valorem levy, the proportionate increase in the PG NO 172 value of the subject matter, ceases to be a `fee ' and becomes a `tax '. (c) Whether, at all events, the distribution of the burden of the fees amongst those on whom the burden falls as the ad valorem principles, dependent merely on the amount or value of the claim in the case irrespective of the nature, quality and extent of adjudicative services, is arbitrary and violative of Article 14 of the Constitution. (d) Whether, in so far as the provisions of section 29(i) read with Entry 20 Schedule I of the `Bombay Act ' are concerned, singling out of a class of litigation viz., applications for grant of probate and letters of administration for levy of ad valorem court fee without the benefit of the upper limit of Rs. 15,000 prescribed in respect of all other suits and proceedings is, as declared by the High Court, exposes that class of litigants to a hostile discrimination and is violative of Article 14 of the Constitution. Re: Contention (a): The concept of a 'fee ' as distinct from that of a `tax ' in the Constitutional scheme has been considered in a series of pronouncements starting from The Commissioner, Hindu Religious Endowments, Madras vs Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, ; 1005 upto Om Prakash Agarwal vs Guni Ray, ; Of `Fees and Taxes ' a learned author, First Principles of Public Finance, by De Marco 78 says: "Levies are divided into two large categories: fees and taxes. To this division corresponds the differentiation of public services as special or general". "A. Fee" says another author, Public Finance, Third Ed., by Buehler, 519: "is a charge for a particular service of special benefit to individuals or to a class and of general benefit to the public, or it is a charge to meet the cost of a regulation PG NO 173 that primarily benefits society." "Fees must be paid to secure the enjoyment of a particular government service such as the provisions for patents, copyrights, or the registration of mortgages, and the services of a court or a public official". Public Finance, Third Edn., p. 519. Another review of all the earlier pronouncements of this court on the conceptual distinction between a `fee ' and a `tax ' and the various contexts in which the distinction becomes telling is an idle parade of familiar learning and unnecessary. What emerges from these pronouncements is that if the essential character of the impost is that some special service is intended or envisaged as a quid pro quo to the class of citizens which is intended to be benefitted by the service and there is a broad and general correlation between the amount so raised and the expenses involved in providing the services, the impost would par take the character of a `fee ' notwithstanding the circumstance that the identity of the amount so raised is not always kept distinguished but is merged in the general revenues of the State and notwithstanding the fact that such special services, for which the amount is raised, are, as they very often do, incidentally or indirectly benefit the general public also. The test is the primary object of the levy and the essential purpose it is intended to achieve. The correlationship between the amount raised through the `fee ' and the expenses involved in providing the services need not be examined with a view to ascertaining any accurate, arithmetical equivalence or precision in the correlation; but it would be sufficient that there is a broad and general correlation. But a fee loses its character as such if it is intended to and does go to enrich the general revenues of the State to be applied for general purposes of Government. Conversely, from this latter element stems the sequential proposition that the object to be served by raising the fee should not include objects which are, otherwise, within the ambit of general governmental obligations and activities. The concept of fee is not satisfied merely by showing that, the class of persons from whom the fee is collected also derives some benefit from those activities of Government. The benefit the class of payers of fee obtain in such a case is clearly not a benefit intended as special service to it but derived by it as part of the general public. Nor does the concept of a fee and this is important require for its sustenance the requirement that every member of the class on whom the fee is imposed, must PG NO 174 receive a corresponding benefit or degree of benefit commensurate with or proportionate to the payment that he individually makes. It would be sufficient if the benefit of the special services is available to and received by the class as such. It is not necessary that every individual composing the class should be shown to have derived any direct benefit. A fee has also the element of a compulsory exaction which it shares in common with the concept of a tax as the class of persons intended to be benefitted by the special services has no volition to decline the benefit of the services. A fee is, therefore, a charge for the special services rendered to a class of citizens by Government or Government at agencies and is generally based on the expenses incurred in rendering the services. The extent and degree of the correlation required to support the fees, has also been considered in a number of pronouncements of this court. It has been held that it is for the governmental agencies imposing the fee to justify its impost and its quantum as a return for some special services. In Municipal Corporation of Delhi and Others vs Mohd. Yasin, this court relied on H.H. Sudhundra Thirtha Swamiar vs Commissioner for Hindu Religious and Charitable endowments, [1963] Suppl. 2 S.C.R. 302 which held: "If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected there being a reasonable relation between the levy and the expenses, incurred for rendering services, the levy would be in the nature of a fee and not in the nature of a tax . " (Emphasis supplied) In Sreenivasa General Traders and others etc. vs Andhra Pradesh and Others etc., this court observed: "Correlationship between the levy and the services rendered/expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a "reasonable relationship" between the levy of the fee and the services rendered. " A fee which at the inception is supportable as one might shed its complexion as a fee and assume that of a tax by reason of the accumulation of surpluses or the happening of PG NO 175 events which tend to affect and unsettle the requisite degree of correlation. In State of Maharashtra & Ors. vs The Salvation Army, Western India Territory, this court generally indicated what, broadly, is the requisite degree of correlationship: ". .This court has expressly stated in the Delhi Cloth and General Mills case (supra) that services worth 61 per cent of contribution would be sufficient quid pro quo to make a levy a fee. So, when we find that in this case the organisation has been rendering services worth 62 per cent of the contribution, it cannot per se he said that there is no correlation between the fee levied and the services rendered." (Emphasis supplied) In Kewal Krishan Puri and another vs State of Punjab and other, this court said: "That the element of quid pro quo may not be possible, or even necessary, to be established with arithmetical exactitude but even broadly and reasonably it must be established by the authorities who charge the fees that the amount is being spent for rendering services to those on whom falls the burden of the fee. At least a good and substantial portion of the amount collected on account of fees, may be in the neighbourhood of two thirds or three fourths must be Shown with reasonable certainly as being spent for rendering services of the kind mentioned above." (Emphasis supplied) In regard to the nature of court fee we have the pronouncement of this court in Secretary, Government of Madras, Home Department and Another vs Zenith Lamp & Electrical Ltd., [1973] 2 SCR; p. 973 (1981 82). This court after referring to the legislative entries pertaining to the legislative fields distributed over the three lists of the Seventh Schedule to the Constitution, repelled the contention that `fees taken in court ' occurring in Entry 3 of List II are really in the nature of a `tax ' or at any rate constitute an impost sui generis. This Court held: PG NO 176 "It seems to us that the separate mention of "fees taken in Court" in the Entries referred to above has no other significance than that they logically come under entries dealing with administration of Justice and courts. The draftsman has followed the scheme designed in the Court Fees Act, 1870 of dealing with fees taken in court at one place. ." "It seems plain that "fees taken in court" are not taxes, for if it were so, the word `taxes ' would have been used or Some other indication given . .It follows that "fees taken in court" cannot be equated to `Taxes '. If this is so, is there any essential difference between fees taken in court and other fees? . " "But one thing the Legislature is not competent to do, and that is to make litigants contribute to the increase of general public revenue. In other words, it cannot tax litigation, and make litigations pay, say for road building or education or other beneficial schemes that a State may have. There must be a broad correlationship with the fees collected that the cost of administration of civil justice. " In the present cases, the concerned State Governments have filed in the proceedings before the High Court statements of the receipts and expenses on the administration of Justice in their effort to establish the requisite correlation. It is not necessary to go, in any particular detail, into the break up of these figures. Both High Courts, after an examination of the statistics felt no hesitation in upholding the correlation. We did not also understand the learned counsel for the appellants as questioning the correctness of the figures and the inference as to correlation suggested thereby. Learned counsel for the respective States submitted that if the outlays on capital expenditure are also taken into account, there will be no shadow of doubt that the expenditure would be further higher than the fee receipts. So far as the Karnataka State is concerned, similar exercise was done in an earlier case also in Ram Bhadur Thakur & Co. and another vs State of Karnataka, AIR 1979 (SC); 119. In the Karnataka Cases the relevant figures for the 5 years from 1980 81 to 1984 85 respectively are: (the figures in brackets indicate expenditure) 1980 81 Rs. 5,22,08,513 (Rs.6,80,33,119); 1981 82 Rs.6,69,10.019 PG NO 177 (Rs.7,97,76,852); 1982 83 Rs.8,28,46,359 (Rs.9,41,161); 1983 84 Rs.8,21,49,626 (Rs.9,44,61,594); 1984 85 Rs.8,00,18,673 (Rs .12,15,90,418). In the Rajasthan cases the financial statements furnished before the High Court for the 7 years from 1977 78 to 1983 84, the receipts (in lakhs) by way of court fee and expenditure incurred for the services (furnished in brackets) are respectively: 1977 78 Rs.101.42. (Rs.264.56); 1978 79 Rs.95.50 (Rs.286 90); 1979 80 Rs.114.63 (Rs.323.04); 1980 81 Rs.134 92 (Rs.379 89); 1981 81 Rs.159.62 (Rs.444.83); 1982 83 Rs.179 87 (Rs.544.76); 1983 84 Rs.176.41 (Rs. 692.11). It is true that in the Rajasthan statements there was no break up of the figures between expenditure on administration of civil justice and criminal justice; but having regard to the figure, a reasonable estimate of the proportion of the former is possible and the figures do indicate and establish the requisite correlationship. The contention (a) of the appellants is insubstantial. Re: Contention (b) The basic argument is that having regard to the very nature of the judicial process of resolution of disputed in civil courts, the postulate that judicial time and the service of the machinery of justice is consumed and utilised in direct proportion to the amount or value of the subject matter is the first and fundamental error. The rationale of the imposition of court fee on an increasing scale, according as the value or the amount of the subject matter, is, it is urged, an error which is the logical result and outcome of the first. In the distribution of the burden of the court fee amongst the litigants, it is urged, the ad valorem yardstick, which is relevant and appropriate to taxation, is wholly inappropriate because the principle or basis of distribution in the case of a fee should be the proportionate cost of services inter se amongst the beneficiaries. Reliance is placed on The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, ; Reliance is also placed on the following observations of Mukherjea J., in Commissioner Hindu Religious Endowment, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, ; , relied on by Venkataramiah, J. in Om Prakash Aggarwal etc. PG NO 178 vs Giri Raj Kishori and others etc. [1986] SCC (1); 730. "Coming now 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 costs are arbitrarily assessed. "Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recepients to pay." (Emphasis supplied) The following observations of Krishna Iyer J. in N.M. Desai vs The Teesteels Ltd. and another, AIR 1980 (2) SC: 2125 are also relied upon: "It is more deplorable that the culture of the magna carta notwithstanding the anglo lndian forensic system and currently free India 's court process should insist on payment of court fee on such a profiteering scale without correlative expenditure on the administration of civil justice that the levies often smack of sale of justice in the Indian Republic where equality before the law is guaranteed constitutional fundamental and the legal system has been directed by Article 39A "to ensure that opportunities for securing justice are not denied to any citizen by reason of economic. disabilities. " The right of effective access to justice has emerged in the Third World countries as the first among the new social rights what with public interest litigation, community based actions and pro bono public proceedings. "Effective access to justice can thus be seen as the most basic requirement the most basic `Human Right ' of a system which purports to guarantee legal rights." However, the observations in Shirur Mutt 's case as to the uniformity of the levy must be understood in the light of the next sentence in that very passage which says: ". These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. " PG NO 179 The criticism of Krishna Iyer J. as to the `profiteering scale ' would, as the passage relied upon itself indicates, be attracted only if the levy is "without the correlative expenditure in the administration of civil justice. " Reference was also made to certain observations of the learned author H.M. Seervai Constitutional Law of India, Third Edn. Vol II, 1958 that court fee should not be a weapon to stifle suits or proceedings and that though in fixing the court fees regard may be given to the amount involved, "a stage is reached when an increasing amount ceases to be justified." ". .Thus, an ad valorem court fee of 1 percent for suits involving Rs. l lack or more with a maximum of Rs.15,000 or Rs.20,000 may be justified; but a court fee without limit cannot be justified, for after a certain amount is reached, no greater service can be rendered to whole classes of litigants; on the contrary, such increased court fees render disservice by rendering the cost of litigation prohibitive." (Emphasis supplied) Learned counsel also referred to and relied Upon the decision of the Bombay High Court in Indian Organic Chemicals vs Chemtax Fibres, [1983] Bombay LR; 406 upon certain observations of the Madras High Court in Secretary, Government of Madras, Home Department, And Another vs Zenith Lamp & Electrical Ltd., ILR 1968 (Madras); 247 and on a judgment dated 22.12.1972 of the FUll Bench of the Gujarat High Court in Lady Tanumati Girijaprasad and another vs Special Rent Acquisition Officer, Western Railway, Ahemadabad, Special Civil Application No. 979 of 1970 with Special Civil Application 287 of 1967. The submissions on this point, in some areas, overlap contention (c) but the point sought to be emphasised so far as the present contention is concerned, is that the essence and the planitude of the concept of `fee ' requires not only that there should be a broad correlationship between the impost and the services but also a requirement, inherent in and as a part of the concept itself, that the expenses for the services must also be distributed in an equitable manner amongst those constituting the class receiving the services. This aspect, it is urged, is distinct from the susceptibility of the impost to be declared unconstitutional on the ground that the distribution of its burden is arbitrary. The same event demonstrating the unfairness of the distribution of the PG NO 180 burden would, it is urged, produce two distinct legal consequences: first, detracting from the fundamental concept of a fee and, secondly, by reason of the invidious discrimination wrought by it is violative of the constitutional pledge of equality. State Governments would, however, say that this is merely two different ways of saying the same thing and that the concept of a `fee ' never really depended for its validity, conceptually as a `fee ', upon the requirement of a just and equitable distribution of its burden amongst the recipients of the service and that as long as a broad approximation between the expenses of the services and the amount raised by the fee is established, the impost would continue to retain and not shed its complexion as a fee If there is arbitrariness of inequitability in the distribution of the burden, that aspect would, it is submitted, not detract from basic concept of the levy as a `fee ' but vitiates the levy for hostile discrimination. Perhaps the most lucid formulation and presentation of the appellants contention for whatever it is worth in the ultimate analysis are to be found in the Judgment of the Madras High Court in the Zenith Lamp Case, (lLR which came up before this court in 1973(2) SCR, 973. Those observations sum up the matter succinctly: "Irrespective of the magnitude of the claim and the complexity of the case and the anxiety of the suitor, a limit will be reached so far as the service that could be rendered in courts is concerned. Judicial time is not spent in direct proportion to the value of the claim. It may have relation to the question involved. That appears to be the reason behind the maximum court fee originally prevalent and even now found in some states." ". The problem is in the distribution of the levy in a practical and reasonable manner so as to fall fairly equitably on all suitors, that no particular class or section of them is disproportionately hit and made to bear more than their fair share of the expenditure on the administration of justice, on considerations not germane in the context of the levy authorised by law." "As it is, as the value of the claim goes up, the levy becomes more and more unrelated to the object of the levy. A PG NO 181 few suitors would be made to bear a heavy share of the expenditure unrelated to the services required by them with the result that, when the claims are high, only one of the two essential elements of a levy to be regarded as a fee is left While the occasion for the levy is the demand of special service by the suitor that is, one element is present, there is no reasonable. correlation between the levy and the services that is, the second element is lacking. The levy becomes excessive, grossly disproportionate and unreasonable qua the particular suitor it ceases to be a fee and becomes a tax for him." (Emphasis supplied), ILR, Mad., 1968 (368 372). This is the crux of the matter and a fair summing up of the arguments of the learned counsel for the appellants. This again, is what the High Court of Bombay adopted in the case of Indian Organic Chemicals vs Chemtax Fibres, [1983] LR Bombay, 406, one of the cases relied upon by the appellants. We may, briefly, refer to the setting in which the matter arose before the Bombay High Court. In the proceedings, the plaintiffs challenged the provisions of the Bombay Court Fees (Second Amendment) Act, 1974 by which, inter alia, the upper limit of the court fee, of Rs.15,000 then obtaining was done away with. The consequence was that ad valorem court fee, without any upper limit, had had to be paid. The matter arose out of what was alleged as the `Backbay Scandal ' in which various plots of land reclaimed from the Sea in South Bombay were disposed of by Government, according to plaintiffs ' allegation, in violation of the prescribed rules and for a pittance in order to confer a largesse on the chosen. The allotment of plots appears initially, to have been challenged in writ proceedings; but ultimately a suit had had to be filed as disputed questions of facts were stated to have been involved. The value of the subject matter of the suit was Rs. 5,56,30,731.87 and the court fee payable was Rs.5,60,000 under the amended Act which had, in the meantime, come into force. The amendment was challenged on three grounds. The first was that the legislation was itself mala fide and was ushered in with oblique motives of stifling the very suit and the challenge to the impugned allotments. The second was that levy of court fees ad valorem without any upper limit would alter the character of the levy and convert it from `fee ' into a `tax '. The third contention was that the amendment was a colourable piece of legislation and was not a legitimate exercise to raise a fee but to impose, in the PG NO 182 cloak of a fee, a tax to augment the general public revenues. The Bombay High Court rejected the first contention; but accepted the second and held that even if the Government had satisfied itself that there was necessity for collection of enhanced quantum of court fee, it could have done so on the basis of a rationalised structure which might result in the enhancement of the ceiling from Rs. 15,000 to 20,000 or even 25,000 in which event the court would not be able to hold that the levy had become so excessive and so grossly disproportionate and unreasonable qua a particular suitor as to cease to be a fee and become a tax. The High Court held: ". In the case before us the fact that the plaintiff on its claim is called upon to pay after the amending Act of 1974 court fees of Rs. 5,60,000 eloquently testifies to the harshness, the excessive character and the unreasonableness of the levy and once such conclusions are reached, it will have to be held that this levy at the higher figure which is secured by the impugned Act has converted exation from a `fee ' into a `tax '. If that be the result secured through the enactment, which has brought about this result would be liable to be struck down." (ILR), Bom. ; 1981 Vol. 83; 415 16. On the third ground also the court upheld the challenge, being of the view that the Government had not established the quid pro quo to the requisite extent. So far as the decision of the Full Bench of the Gujarat High Court in Lady Tanumati Girijaprasad and another vs Special Rent Acquisition Officer, Western Railway, Ahemadabad, Special Civil Application No. 979 of 1970 with Special Civil Application 287 of 1967, is concerned, that decision, even to the extent it goes, is not on the aspects emphasised in these appeals. The decision really turned on the question whether correlation between the services and the fee had taken established or not. The High Court was of the view that it had not. Sri F.S. Nariman submitted that the facts of the Rajasthan appeal were itself demonstrative of the arbitrariness and inequities inherent in the imposition of the ad valorem impost without an upper limit. In that case the appellant was called upon to pay on his plaint almost PG NO 183 l/7th of the entire estimated court fees receipts of the year and it would be inconceivable that, proportionately, 1/7th of the judicial time would be spent on this suit. Learned counsel submitted that in the very nature of the judicial process, a stage is reached beyond which there could be no proportionate or progressive increase in the services rendered to a litigant either qualitatively or quantitatively. Unless that limit is recognised and a corresponding ceiling of court fee fixed, the impost qua the particular litigant, it is urged, would shed its complexion as a fee and would par take of the nature of an exaction more resembling a tax than a fee. Learned counsel submitted that in the process of adjudication of disputes before courts, judicial time and the machinery of justice are not utilised in direct proportion to the value or the amount of the subject matter of the controversy. Cases involving very small claims might raise difficult questions of fact and law requiring the expenditure of judicial time wholly disproportionate to the court fee paid in the case. Conversely, claims involving heavy financial sums might not, as in the case of suits on negotiable instruments generally, take much time of the court at all. That apart, it is urged, a recognition of the outer most limit of the possible services and a prescription of a corresponding upper limit of court fee should be made, lest the levy, in excess of that conceptual limit, becomes a tax. The ideal measure or yardstick of court fee, learned counsel said, was a fee in proportionate to the judicial the expended over a case and if this measure or yardstick is difficult of application owing to its practical difficulties in its effectuation, either of the two further alternatives could save a legislation imposing a fee. One such was to fix an upper limit commensurate with conceptionalised outer most limit of the money value of the maximum possible services. hypothetically so conceived. The second was to stipulate after a particular stage, progressively lower rates on correspondingly increasing slabs of the value of the subject matter or in other words, after a certain stage, to make the rates go down according as the value goes up. We have given our careful and anxious consideration to this vexed problem which is a subject matter of considerable debate both in and outside courts. The anomalies that the policy behind the impugned provisions can produce in conceivable cases could, indeed, be inequitable or even quite startling. But, the argument, in the last analysis, becomes indistinguishable from the contention that the correlation of the services to the fee would have to be decided on the basis of how the correlation operates in each individual case. It would be an insistance on testing the conceptual nature of the fee on the basis of the degree of the quid pro quo in the case of each individual payer of the PG NO 184 fee. That is the peccant part of the argument. Once a broad correlation between the totality of the expenses on the services, conceived as a whole, on the one hand and the totality of the funds raised by way of the fee, on the other, is established, it would be no part of the legitimate exercise in the examination of the constitutionality of the concept of the impost to embark upon its effect in individual cases. Such a grievance would be one of disproportionate nature of the distribution of the fees amongst these liable to contribute and not one touching the conceptual nature of the fee. Indeed this position was clearly recognised by the Madras High Court in Zenith Lamp 's case itself in the following passage of the Judgment: "If, in substance, the levy is not to raise revenues also for the general purpose of the State the mere absence of uniformity of the fact that it has no direct relation to the actual services rendered by the authority to each individual who obtains the benefit of the service, or that some of the contributories do not obtain the same degree of service as other may, will not change the essential character of the levy." ILR Mad., 1968; 340 41. There might, conceivably, be cases where a particular individual contributor may not derive any benefit at all, though as a member of the class he has no option but to make the contribution. The principle underlying the contention that beyond a point the impost ceases to have the quality of a fee, if valid, can be visualised and applied even to cases where, despite the uniformity in the distribution of the burden, a particular individual does not obtain any service at all. This cannot be a legitimate and permissible ground of invalidation. This is, however, not to say that if the scheme of distribution of the burden is so arbitrary, so unreasonable and disproportionate as to offend the requirements of Article 14, the levy does not fail as violative of Article 14. In H.H. Sudhundra Thirtha Swamiar vs Commissioner For Hindu Religious & Charitable Endowments, Mysore, ; this court held: ". .Nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to individual who obtains the benefit of the service. If with a view to provide a specific service, levy PG NO 185 is imposed by law and expenses for maintaining the service are met out of the amounts collected there being a reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of a tax." (Emphasis supplied) In The City Corporation of Calicut vs Thachambalath Sadasivan and others, [l985] 2 SCC, 115 this court held: "It is not necessary to establish that those who pay the fee must receive direct benefit of the services rendered for which the fee is being paid. If one who is liable to pay receives general benefit from the authority levying the fee the element of service required for collecting fee is satisfied. It is not necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee. (Emphasis supplied) 27. What emerges from the foregoing discussion is that when a broad and general correlation between the totality of the fee on the one h;and and the totality of the expenses of the services on the other is established, the levy will not fail in its essential character of a fee on the ground alone that the measure of its distribution on the persons of incidence is disproportionate to the actual services obtainable by them. The argument that where the levy, in an individual case, for exceeds the maximum value, in terms of money, of the services that could at all be possible, them, qua that contributor, the correlation breaks down is a subtle and attractive argument. However, on a proper comprehension of the true concept of a fee the argument seems to us to be more subtle than accurate. The test of the correlation is not in context of individual contributors. The test is on the comprehensive level of the value of the totality of the services, set off against the totality of the receipts of the character of the `fee ' is thus established, the vagaries in its distribution amongst the class, do not detract from the concept of a `fee ' as such, though a wholly arbitrary distribution of the burden might violate other constitutional limitation. This idea that the test of the correlation is at the "aggregate" level and not at "individual" level is expressed thus. First Principles of Public Finance by De Marco. "The fee must be equal, in the aggregate to the cost of PG NO 186 production of the service. That is the aggregate amount of the fees which the State collects from individual consumers must equal the aggregate expenses of production." (Emphasis supplied). The view taken of the matter by the Bombay High Court in the Indian Organic Chemicals case and the view of the earlier Madras High Court in Zenith Lamp 's case do not commend themselves as sound, having regard to the accepted tests to determine the nature of a `fee '. Contention (b) is not substantiated. Re Contention (c) It is urged that even if the requisite correlationship could be held to have been established, the Rajasthan and the Karnataka legislations, by distributing the burden on the ad valorem principles based merely on the value of the subject matter, independently of considerations of the utilisation of Judicial time, are per se irrational and bring about an arbitrary and disproportionate distribution of the burden so irrational and so divorced from relevant criteria that the impugned provisions violate Article 14. It is urged that a litigation, on which a litigant might have paid a mere Rs. 50 by way of court fee, might involve far more substantial questions and take up judicial time in a measure far greater than a litigation on which a litigant is called upon to pay Rs. 25 lakhs by way of court fee. It is urged that the ad valorem principle which is appropriate to taxation would be inapposite in the context of an impost which is meant as a contribution towards the costs of services. The contention of the States is that as long as their power to raise the funds to meet the expenses of administration of civil justice is not disputed and as long as the funds as raised show a correlation to such expenses, the State, should have sufficient play at the joints to work out the incidents of the levy in some reasonable and practical way. It would, quite obviously impracticable, so proceeds the argument, to measure out the levy directly in proportion to the actual judicial time consumed in each individual case; hence the need to tailor some rough and ready workable basis which though may not be an ideal or the most perfect one, would at least hostile. Perfection in any system of imposition of monetary exactions is an PG NO 187 unattainable goal and that, therefore, the satisfaction of high positive virtues in the scheme is not to be expected but what is to be seen is whether any serious vice of blatant discrimination without any rational basis whatsoever vitiates the system. It will, obviously, be unreasonable, says the States ' learned counsel, to distribute the total expenses amongst all the litigants uniformally irrespective of the amount or value of the subject matter of the litigation. If, contends counsel, an upper limit is fixed and the collection fell short of what the Government intends and is entitled to collect, this would eventually result in the enhancement of the general rates of court fee for all categories. The ad valorem principle is a well recognised principle; it may not provide the best or the most perfect answer; but it can, it is urged, reasonably be expected to provide the least hostile and workable basis of distribution of the burden. If the value of the subject matter is a relevant factor in proportioning the burden of the court fee, is indeed it has been so held, where the line should be drawn in applying the principle it is more a matter of legislative wisdom and preference than of the strict judicial evaluation and adjudication. There might possibly be better methods of administering the collections but that by itself, it is contended, is no ground to strike down what might appearing to be a less perfect system particularly when economic measures and regulations are concerned. So far as the Directive Principles in Article 39A are concerned, the learned Solicitor General said that the directive principles are fundamental in the governance of the country cannot be gainsaid, but in implementing them, policy considerations and priorities will have to be duly evaluated, having regard to the financial constraints. The grievance in these petitions is by the class of the litigants consisting of big financial institutions with superior economic power. The superiority of the economic power is not, it is urged, irrelevant in making them share a higher burden of a public impost. At all events, it is urged, courts can not compel the State to bring forth any legislation to implement and effectuate a Directive Principle. The problem is, indeed, a complex one not free from its own peculiar difficulties. Though other legislative measures dealing with economic regulation are not outside Article 14, it is well recognised that the State enjoys the widest latitude where measures of economic regulation are concerned. These measures for fiscal and economic regulation involve an evaluation of diverse and quite often conflicting economic criteria and adjustment and balancing of various conflicting social and economic values and interests. It is for the State to decide what economic and social policy it PG NO 188 should pursue and what discriminations advance those social and economic policies. In view of the inherent complexity of these fiscal adjustments, courts give a larger discretion to the Legislature in the matter of its preferences of economic and social policies and effectuate the chosen system in all possible and reasonable ways. If two or more methods of adjustments of an economic measure are available, the Legislative preference in favour of one of them cannot be questioned on the ground of lack of legislative wisdom or that the method adopted is not the best or that there were better ways of adjusting the competing interests and claims. The Legislature possesses the greatest freedom in such areas. The analogy of principles of the burden of tax may not also be inapposite in dealing with the validity of the distribution of the burden of a `fee ' as well. This Court in East India Tobacco Co. vs State of Andhra pradesh referred to with approval the following passage in Rottschaefer 's "Constitutional Law", p. 668: "The decisions of the Supreme Court in this field have permitted a State legislature to exercise an extremely wide discretion in classifying property for tax purposes so long as it refrained from clear and hostile discrimination against particular persons or classes. " The Legislature has to reckon with practical difficulties of adjustments of conflicting interests. It has to bring to bear a pragmatic approach to the resolution of these conflicts and evolve a fiscal policy it thinks is best suited to the felt needs. The complexity of economic matters and the pragmatic solutions to be found for them defy and go beyond conceptual mental models. Social and economic problems of a policy do not accord with preconceived stereotypes so as to be amenable to pre determined solutions. In The State of Gujarat and Another vs Shri Ambica Mills Ltd., Ahemdabad Etc., this court observed: ". The court must be aware of its own remoteness and lack of familiarity with the local problems. Classification is dependent on the particular needs and specific difficulties of the community which are beyond the easy ken of the court, and which the legislature alone was competent to make. Consequently, lacking the capacity to inform itself fully about the peculiarities of a particular local situation, a court should hesitate to dub the legislative PG NO 189 classification as irrational. " ". .The question whether, under Article 14, a classification is reasonable or unreasonable must, in the ultimate analysis depend upon the judicial approach to the problem. The more complicated society becomes, the greater the diversity of its problems and the more does legislation direct itself to the diversities. In the utilities, tax and economic regulation cases, there are good reasons for judicial self restraint if not official deference to legislative judgment. The courts have only the power to destroy but not to reconstruct. When to this are added the complexity of economic regulation, the uncertainty the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events, self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability." "Laws regulating economic activity should be viewed differently from laws which touch and concern freedom of speech and religion, voting procreation, rights with respect to criminal procedure etc. Judicial deference to legislature in instances of economic regulation is explained by the argument that rationality of a classification depends upon local conditions about which local legislative or administrative bodies would be better informed than a court. " The lack of perfection in a legislative measure does not necessary imply its unconstitutionality. It is rightly said that no economic measure has yet been devised which is free from all discriminatory impact and that in such a complex arena in which no perfect alternatives exist, the court does well not to impose too rigorous a standard of criticism, under the equal protection clause, reviewing fiscal services. In G.K. Krishnan etc., etc., vs The Stale of Tamil Nadu and Anr. , [1975] 2 SCR, 715 (730) this Court referred to, with approval, the majority view in San Antonio Independend School District vs Bodrigues speaking through Justice Stewart,, 411 US. I at page 41): "No scheme of taxation, whether the tax is imposed on property, income or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, PG NO 190 the court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause." and also to the dissent of Marshall, J. who summed up his conclusions thus: "In summary, it seems to me inescapably clear that this court has consistently adjusted the care with which it will review state discrimination in light of the constitutional significance of the interests affected and the invidiousness of the particular classification. In the context of economic interests we find that discriminatory state action is almost always sustained, for such interests are generally far removed from constitutional guarantees. Moreover, "the extremes to which the court has gone in dreaming up rational bases for state regulation in that area may in many instances be described to a healthy revulsion from the court 's earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls. " Dandridge vs Williams, 397 US at 520. The observations of this court in Income Tax Officer, Shillong and Anr. vs N. Takim Roy Rymbai Etc. Etc. ; made in the context of taxation laws are worth recalling: "The mere fact that a tax falls more heavily on same in the same category, is not by itself a ground to render the law invalid. It is only when, within the range of its selection, the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of Article 14." (Emphasis supplied). The question whether the measure of a tax or a `fee ' should be ad valorem or ad quantum is again a matter of fiscal policy. In the Zenith Lamp 's Case this court observed: "The fee must have relation to the administration of civil justice. While levying fees the appropriate legislature is competent to take into account all relevant factors, the value of the subject matter of the dispute, the PG NO 191 various steps necessary in the prosecution of a suit or matter, the entire cost of the upkeep of courts and officers administering civil justice, the vexatious nature of a certain type of litigation and other relevant matters. It is free to levy a small fee in some cases, a large fee in others, subject of course to the provisions of Article 14." (Emphasis supplied). In the context of levy of market fee, a similar argument was advanced before a High Court that the imposition of market fee advalorem on different commodities irrespective of their weight or volume and irrespective of the extent of the market services rendered in respect of their marketing produced inequality and hostile discrimination. It was urged that the nature and extent of services afforded by the Market Committees must necessarily vary having regard to the nature and volume of the agricultural produce and therefore a blind ad valorem levy would be arbitrary as the services rendered to a buyer who buys say a quintal of cotton or tamarind is quantitatively and qualitatively more than the services that may be envisaged to the class of traders dealing with spices of equivalent money value. The distribution of the burden of the fee on the basis of the value of the commodity, it is argued, was arbitrary as it did not recognise that the services are inherently different for different classes of commodities but treated unequals equally. This argument has its ring of familiarity, with the arguments in the present case. But the High Court ILR 1982 (Karnataka): 399 (reserved by the Supreme Court on another point repelled this contention: We are unable to subscribe to this view. Indeed it appears to us that if the impost was 'ad quantum" and not "ad valorem" it might have attracted. quite legitimately perhaps. the criticism of being arbitrary. By an advalorem impost, the goods independently of their volume and quality are treated equally in term of their value. An impost advalorem" is a well accepted concept in taxation Indeed in Ganga Sagar Corporation 's case (AIR 1980 (SC), 286 Supreme Court dealing, though in a different context stated: . Article 14, a great right by any canon by its promiscuous forensic misuse, despite the Dalmia decision has given the impression of being the last sanctuary of losing PG NO 192 litigants Price is surely a safe guide but other methods are not necessarily vocational. It depends 33. It was then argued that various States have different standards and that while some States have rightly recognised the need for an upper limit to save the constitutionality of the levy, other States like, Karnataka, Tamil Nadu, etc. envisaged an ad valorem levy with out any upper limit. It is contended that though India is a federal polity, the judicial system, however, is an integrated one and that therefore different standards of court fee in different States would be unconstitutional. But it is trite that for purposes of testing a law enacted by one State in exercise of its own independent legislative powers for its alleged violation of Article 14 it cannot he contrasted with laws enacted by other States. In The State of Madhya Pradesh vs G.C. Mandawar. [ ; this court observed: "Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor Does it contemplates a law of the Center or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. ' 34. Having regard to the nature and complexity of this matter it is, perhaps, difficult to say that the ad valorem principle which may not be an ideal basis for distribution of a tee can at the same time be said to be so irrational as to incur any unconstitutional infirmity. The presumption of constitutionality of laws requires that any doubt as to the constitutionality of a law has to be resolved in favour of constitutionality. Though the scheme cannot be upheld, at the sametime, it cannot be struck down either. The State is in theory entitled to raise the totality of the expenses by way of fee. Any interference with the present yardstick for sharing the burden might in turn produce a yardstick less advantageous to litigants at lower levels. Subject to certain observations and suggestions we propose to make in regard to the rationalisation of the levies in view of the general importance of the matter to the administration of civil justice, we think we should decline to strike down the law. PG NO 193 36. Re: Contention (d) A In the appeal of the State of Maharashtra arising out of the Bombay Court Fees Act, 1959, the High Court has struck down the impugned provisions on the ground that the levy of court fee on proceedings for grant of probate and letters of administration ad valorem without the upper limit prescribed for all other litigants the court fee in the present case amounts to Rs.6,14,814 is discriminatory. The High Court has also held that, there is no intelligible or rational differentia between the two class of litigation and that having regard to the fact that what is recovered is a fee, the purported classification has no rational nexus to the object. The argument was noticed by the Learned Single Judge thus: "Petitioners next contend that the impugned clause discriminates as between different types of suiters and that there is no justification for this discrimination. Plaintiffs who go to civil courts claiming decrees are not required to pay court fees in excess of Rs. 15,000. This is irrespective of the amounts claimed over and above Rs. 15 lacs. As against this, persons claiming probates have no such relief in the form of an upper limit to fee payable. " This contention was accepted by the Learned Single Judge who has upheld the appeal. Indeed, where a proceeding for grant of probate and letters of administration becomes a contentious matter, it is registered as a suit and proceeded with accordingly. If in respect of all other suits of whatever nature and complexity an upper limit of Rs. 15,000 on the court fees is fixed, there is no logical justification for singling out this proceeding for an ad valorem impost without the benefit of some upper limit prescribed by the same statute respecting all other litigants. Neither before the High Court nor before us here was the impost sought to be supported or justified as something other than a mere fee, levy of which is otherwise within the State 's power or as separate 'fee ' from another distinct source. It is purported to be collected and sought to be justified only as court fee and nothing else. The discrimination brought about by the statute, in our opinion, fails to pass the constitutional master as rightly pointed out by the High Court. The High Court, in our opinion rightly, held: "There is no answer to this contention, except that the legislature has not thought it fit to grant relief to the seekers of probates, whereas plaintiffs in civil suits were PG NO 194 thought deserving of such an upper limit. The discrimination is a piece of class legislation prohibited by the guarantee of equal protection of laws embodied in Article 14 of the Constitution. On this ground also item 10 cannot be sustained " We approve this reasoning of the High Court and the decision of the High Court is sustained on this ground alone. In view of this any other ground urged against the constitutionality of the levy is Unnecessary to be examined. Contention (d) is accordingly held an answer against the appellant and the appeals preferred by the State of Maharashtra are liable to be and are hereby dismissed. Now at the end of the day, what remains is the suggestion necessary in regard to the rationalisation of the court fees under the 'Rajasthan Act ' and the 'Karnataka Act The arguments in the case highlight an important aspect. The levy of court fee at rates reaching 10% ad valorem operates harshly and almost tends to price justice out of the reach of many distressed litigants. The Directive Principles of State Policy, though not strictly enforceable in courts of law, are yet fundamental in the governance in the country. They constitute fonsjuris in a Welfare State. The prescription of such high rates of courtfees even in small claims as also without an upper limit in larger claims is perilously close to arbitrariness, an unconstitutionality. The ideal is. of course, a state of affairs where the state is enabled to do away with the pricing of justice in its courts of justice. In this reach for the ideal it serves to recall the words of Robert Kennedy:"Some men see thing as they are and say why, I dream things that never were and say why not? " The power to raise funds through the fiscal tool of a fee is not to be confused with a compulsion so to do. While 'fee meant to defray expenses of services cannot be applied towards objects of general public utility as part of general revenues, the converse is not valid General Public revenues can, with justification, be utilised to meet. wholly or in substantial part, the expenses on the administration of civil justice. Many States including Karnataka and Rajasthan had earlier, statutory upper limits fixed for the court fee. But later legislations has sought to do away with the prescription of an upper limit. The insistence on raising court fees at high rates recalls of what Adam Smith Wealth of Nations said: PG NO 195 "There is no art which one government sooner learns of another than that of drawing money from the pockets of the people. Fees are levied no doubt to defray the cost of services but as observed by Findlay Shirras Science of Public Finance, Vol. II, 674 675: "Fees are levied in order to defray usually a part, in rare cases the whole of the cost of services done in public interest and conferring some degree of advantage on the fee payer. (Emphasis supplied) Though we have abstained from striking down the legislation, yet, it appears to us that immediate steps are called for and are imperative to rationalise the levies. In doing so the States should realise the desirability of levying on the initial slab of the subject matter say upto Rs. 15,000 a nominal court fees not exceeding 2 to 2 1/2% so that small claims are not priced out of Courts. "Those who have less in life ' it is said should have more in law". Claims in excess of Rs. 15,000 might admit of an ad volorem levy at rates which, preferrably, should not exceed 71/2% subject further to an upper limit which, having regard to all circumstances, could be envisaged at Rs.75,000. The upper limit even piror to 1974 under the Bombay Act was Rs.15,000 and prior to 1961 under the Rajasthan Act ' at Rs.7,500. Having regard to steep inflation over the two decades the upper limit could perhaps go upto Rs.75,000. After that limit is reached, it is appropriate to impose on gradually increasing slabs of the value of the subject matter, progressively decreasing rates, say from 7 l/2/% down to 1/2% in graduated scales. The Governments concerned should bestow attention on these matters and bring about a rationalisation of the levies. With these observations and directions we dismiss the appeals, writ petitions and special leave petitions, but in the circumstances, without an order as to costs. R.S.S. Appeals & Petitions dismissed.

These three groups of special leave petitions/appeals/writ petitions concern the policy and legality of the levy of Court fees under the Provisions of the Karnataka Court Fees and Suits valuation Act, 1958, the PG NO 155 PG NO 156 Rajasthan Court Fees and Suits Valuation Act, 1961 and the Bombay Court Fees Act, 1959. The petitioners from Rajasthan had challenged before the High Court the constitutional validity of the provisions of section 20 read with Article 1 Schedule 1 of the Rajasthan Act which prescribed and authorised the levy of court fees on an uniform ad valorem basis without the prescription of any upper limit. the High Court upheld the constitutionality of the impugned provision. The appeal and the special leave petitions from Karnataka are directed against the common order of the Karnataka High Court upholding the validity of the corresponding provision of the Karnataka Act which similarly imposed an ad valorem court fee without prescribing any upper limit. The writ petitions have challenged the provision directly in this Court. So far as the Bombay Act is concerned, the State of Maharashtra has come up in appeal against the judgment of the Division Bench of the Bombay High Court affirming the order of the learned Single Judge striking down the provisions of section 29(1) read with entry 10 of Schedule I of the Act in so far as they purport to prescribe an ad valorem court fee, without any upper limit, on grants of probate, letters of administrative etc., while in respect of all other suits, appeal and proceedings an upper limit of court fee of Rs.15,000 is prescribed. The High Court held this prescription of ad valorem court fee without any upper limit on this class of proceedings alone was constitutionally impermissible in that it sought to single out this class of litigants. It was contended on behalf of the petitioners/appellants that (i) the imposition of court fees at nearly 10% of the value of the subject matter in each of the courts through which the case sojourns before it reaches a finally would seriously detract from fairness and justness of the system; (11) the exaction of ad valorem fee uniformly at a certain percentage of the subject matter without an upper limit or without the tapering down after a certain stage onwards would negate the concept of e fee and part take of the character of a tax outside the boundaries of the State 's power; (111) the ad valorem yardstick, which is relevant and appropriate to taxation, is wholly inappropriate because the principle or basis of distribution in the case of a fee should be the proportionate cost of services inter se amongst the beneficiaries; (iv) in the very nature of the Judicial process, a stage is reached beyond which there could be no proportionate or progressive increase in the services rendered to a litigant either qualitatively or PG NO 157 quantitatively; (v) in the process of `adjudication of disputes before courts, judicial time and the machinery of justice are not utilised in direct proportion to the value or the amount of the subject matter of the controversy; (vi) a recognition of the outermost limit of the possible services and a prescription of a corresponding upper limit of court fee should be made, lest the levy, in excess of that conceptual limit, becomes a tax; and (vii) though India is a federal polity, the judicial system, however, is an integrated one and that therefore different standards of court fee in different States would be unconstitutional . The contentions of the State were that (i) as long as their power to raise the funds to meet the expenses of administration of civil justice was not disputed and as long as the funds raised show a correlation to such expenses, the States should have sufficient play at the joints to work out the incidents of the levy in some reasonable and practical way; (ii) it would, quite obviously, be impracticable to measure out the levy directly in proportion to the actual judicial time consumed in each individual case, hence the need to tailor some rough and ready workable basis which, though may not be an ideal or the most perfect one, would at least be the least hostile; (iii) if an upper limit is fixed and the collection fell short of what the Government intends and is entitled to collect, this would eventually result in the enhancement of the general rates of court fee for all categories; (iv) if the value of the subject matter is a relevant factor in proportioning the burden of the court fee. where the line should be drawn in applying the principle it is more a matter of legislative wisdom and preference than of the strict judicial evaluation and adjudication; and (v) courts cannot compel the State to bring forth any legislation to implement and effectuate a Directive Principle. Dismissing the appeals, writ petitions and the special leave petition, this Court, HELD: ( I) All civilised Governments recognise the need for access to justice being free. Whether the whole of the expenses of administration of civil justice also in addition to those of criminal justice should be free and met entirely by public revenue or whether the litigants should contribute and if so, to what extent, are matters of policy. [170G] (2) A fee is a charge for the special service rendered to a class of citizens by Government or Government agencies and is generally based on the expenses incurred in rendering the services. [174B] PG NO 158 The Commissioner, Hindu Religious Endowments, Madras vs Lakshmindra Thirtha Swamiar of Shirur Mutt., [1954] SCR (1) 1005 and Om Prakash Agarwal vs Guni Ray, AIR 1986 (SC) 726 referred to. (3) It is for the governmental agencies imposing the fee to justify its impost and its quantum as a return for some special services. (4) Once a broad correlation between the totality of the expenses on the services, conceived as a whole, on the one hand and the totality of the funds raised by way of the fee, on the other, is established, it would be no part of the legitimate exercise in the examination of the constitutionality of the concept of the impost to embark its effect in individual cases. Such a grievance would be one of disproportionate nature of the distribution of the fees amongst those liable to contribute and not one touching the conceptual nature of the fee. [184A B] (5) The test is one of the comprehensive level of the value of the totality of the services, set off against the totality of the receipts. If the character of the `fee ' is thus established, the vagaries in its Distribution amongst the Class, do not detract from the concept of a `fee ' as such, though a wholly arbitrary distribution of the burden might violate other constitutional limitations. [185G] Municipal Corporation of Delhi & Ors. vs Mohd . Yasin. , ; H.H. Sudhundra Thirtha Swamiar vs Commissioner for Hindu Religious & Charitahle Endowments., [1963] Supp. 2 SCR 302; Sreenivasa General Traders & Ors. vs Andhra Pradesh & Ors., ; State of ' Maharashtra & Ors. vs The Salvation Army, Western India Territorv ; Kewal Krishan Puri & Anr. vs State of Punjab & Ors. ; Secretary. Government of ' Madras, Home Department & Anr. vs Zenith Lamp & Anr. vs State of Kanataka, AI 1979 (SC) 119; The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swantiar of Sri Shirur Mutt., ; ; Om Prakash Agarwal vs Giri Raj Kishori, 730; N.M. Desai vs The Teesteels Ltd. & Anr., AIR 1980 (2) SC 2125; Lady Tanumuti Girijaprasad & Anr. vs Special Rent Acquisition Officer, Western Railway Special Civil Application No. 979 of 1970 with Special Civil Application 287 of 1967; The City Corporation of Calicut vs Thachambalath Sadasvian & Ors., , referred to. Indian Organic Chemicals vs Chemtax Fibres, Secretary, Government of Madras Home Department vs Zenith Lamp & Electrial Ltd., ILR 1968 (Madras) 247 overruled. PG NO 159 (6) Though legislative measures dealing with economic regulation are not outside article 14, it is well recognised that the State enjoys the widest latitude where measures of economic regulation are,concerned. These measures for fiscal and economic regulation involve an evaluation of diverse and quite often conflicting economic criteria and adjustment and balancing of various conflicting social and economic values and interests. It is for the State to decide what economic and social policy it should pursue and what discriminations advance those social and economic policies. In view of the inherent complexity of these fiscal adjustments, courts give a larger discretion to the Legislature in the matter of its preferences of economic and social policies and effectuate the chosen system in all possible and reasonable ways. [187G H; 188A B] East India Tobacoo Co. vs State of Andhra Pradesh, ; The State of Gujarat & Anr. vs Shri Ambica Mills Ltd. Ahmedabad, referred to. (7) The lack of perfection in a legislative measure does not necessarily imply its unconstitutionality. It is rightly said that no economic measure has yet been devised which is free from all discriminatory impact and that is such a complex arena in which no perfect alternatives exist, the court does well not to impose too rigorous a standard of criticism. under the equal protection clause. reviewing fiscal services. [189F G ] G.K. Krishnan etc. vs The Slate of Tamil Nadu [1975] 2 SCR 715 730; San Antonic Independent School Districf vs Bodriguer. 411 U.S.I. at p. 41. Income Tax Officer, Shillong & Anr. vs N. Takim Roy Rymbai etc. ; , referred to. It is trite that for purposes of testing a law enacted by one State in exercise of its own independent legishtive powers for its alleged violation of Article 14 it cannot be contrasted with laws enacted by other States. [192C] The State of Madhya Pradesh vs G.C. Mandawar, ; , referred to. (9) Having regard to the nature and complexity of this matter It is, perhaps, difficult to say that the ad valorem principle which may not be an ideal basis for distribution of a fee can at the same time be said to be so irrational PG NO 160 as to incur any unconstitutional infirmity. The presumption of constitutionality of laws requires that any doubt as to the constitutionality of a law has to be resolved in favour of constitutionality. Though the scheme cannot be upheld, at the same time, it cannot be struck down either. [192E F] (10) The State is in theory entitled to raise the totality of the expenses by way of fee. Any interference with the present yardstick for sharing the burden might in turn produce a yardstick less advantageous to litigants at lower levels. [192G] (11) The High Court has struck down the provisions of section 29(1) read with entry 10 of Schedule I of the Bombay Court Fees Act, 1959 on the ground that the levy of court fee on proceedings for grant of probate and letters of administration ad valorem without the upper limit prescribed for all other litigants is discriminatory. If in respect of all other suits of whatever nature and complexity an upper limit of Rs.15,000 on the court fee is fixed, there is no logical justification for singling out this proceeding for an ad valorem impost without the benefit of some upper limit prescribed by the same statute respecting all other litigants. [193A B; F] (12) The Directive Principles of State Policy though not strictly enforceable in courts of law, are yet fundamental in the governance in the country. They constitute fons juris in a Welfare State. [194E] U.B.S.E. Board vs Hari Shanker, AIR 1979 SC 69 referred to. (13) The power to raise funds through the fiscal tool of a `fee ' is not to be confused with a compulsion to do so.

Civil Appeal No. 562 of 1985 From the Judgment and Order dated the 28th January, 1985 of the Calcutta High Court in F. M. A. T. No. 970 of 1984. Somnath Chatterjee, H. K Puri for the Appellants. section N. Kacker, ,4. K Ganguli for the Respondents. The West Bengal State Electricity Board is the principal appellant in this appeal by special leave which we have just now granted. The first respondent, a permanent employee of the West Bengal State Electricity Board, filed the writ petition out of which the appeal arises in the Calcutta High Court to quash an order dated march 22, 1984 of the Secretary, West Bengal State Electricity 1016 Board terminating his services as Deputy Secretary with immediate effect on payment of three month 's salary in lieu of three month 's notice. The order gave no reasons for terminating the services of the respondent and there was nothing in the order which could possibly be said to attach any stigma to the respondent. Apparently the order was made under Regulation 34 of the Board 's regulations which enables the Board to terminate the services of any permanent employee 'by serving three months ' notice or on payment of salary for the corresponding period in lieu there of '. The High Court contrasted Regulation 34 with Regulation 33 which provides for the termination of services of both permanent and temporary employees of the Board on attaining the age of superannuation, as a result of the disciplinary action etc. For the sake of convenience we extract below Regulation 33 and the first paragraph (which alone is relevant) of Regulation 34: "33 (1) Unless otherwise specified in the appointment order in any particular case, the services of a permanent employee of the Board may be terminated without notice (i) On his attaining the age of retirement or by reason of a declaration by the competent medical authority that he is unfit for further service; or (ii) as a result of disciplinary action; (iii) if he remains absent from duty, on leave or other wise, for a continuous period exceeding 2 years. (2) In the case of a temporary employee, his service may be terminated by serving of (a) one month 's notice on other side or on payment of` a month 's salary in lieu thereof; or (b) notice on either side for the period specified in the appointment order or contract or on payment of salary in lieu thereof, as the case may be. (c) the service of a temporary employee shall also be deemed to have been terminated automatically if the period of extraordinary leave without pay and/or of unauthorized absence from duties exceeding(s) a maximum period of 90 days. 1017 "34. in case of a permanent employees, his services A may be terminated by serving three months ' notice or on payment of salary for the corresponding period in lieu thereof. " Contrasting Regulations 33 and 34 the High Court came to the conclusion that Regulation 34 was arbitrary in nature and suffered from the vice of enabling discrimination. The High Court, therefore, struck down the first paragraph of Regulation 34 and as a consequence quashed the order terminating the services of the first respondent. The learned counsel for the West Bengal State Electricity Board submitted that Regulation 34 did not offend article 14 of the Constitution, that sec. 18A and 19 of the Electricity Supply Act laid down sufficient guidelines for the exercise of the power under Regulation 34 and in any case the power to terminate the services of a permanent employee was vested in higher ranking officials and might be expected to be exercised in a reasonable way. We are not impressed with the submission of the learned counsel for the Board On the face of it, the regulation is totally arbitrary and confers on the Board a power which is capable of vicious discrimination It is a naked 'hire and fire ' rule, the time for banishing which altogether from employer employee relationship is fast approaching. Its only parallel is to be found in the Henry VIII class so familiar to administrative lawyers In Moti Ram Deka vs North East frontier Railway(l) Rules 148 (3) and 149 (3) of the Indian Railway Establishment Code were challenged on the ground that they were contrary to article 311 (2) of the Constitution. The challenge was upheld though no opinion was expressed on the question whether the rule offended art 14 of the Constitution. Since then article 14 has been interpreted in several decisions of this Court and conferment and exercise of arbitrary power on and by the State or its instrumentalities have been frowned upon and struck down (2) 1018 as Regulation 34 confers on the Board in the present case. The learned judge struck down Regulation 48 (a) and we agree with his reasoning and conclusion. In Workman, Hindustan Steel Ltd. vs Hindustan Steel Ltd.(l) this Court had occasioned to hold that a Standing Order which conferred such arbitrary, uncanalised and drastic power to enable the employer to dispense with an inquiry and to dismiss an employee, without assigning any reason, by merely stating that it was expedient and against the interest of the security to continue to employ the workman was violative of the basic requirement of natural justice. The learned counsel for the appellant relied upon Manohar P. Kharkhar vs Raghuraj(2) to contend that Regulation 48 of the Air India Employee 's Service Regulations was valid. It is difficult to agree with the reasoning of the Delhi High Court that because of the complexities of modern administration and the unpredictable exigencies arising in the course of such administration it is necessary for an employer to be vested with such powers as those under Regulation 48. We prefer the reasoning of Sawant, J. Of the Bombay High Court and that of the Calcutta High Court in the judgment under appeal to the reasoning of the Delhi High Court. In the result the appeal is dismissed with costs. M. L. A. Appeal dismissed. (1) ; (2) [1981] II L.L.J. 459.

First Paragraph of Regulation 34 of West Bengal State Electricity Board Regulations provides that in case of a permanents employee his services may be terminated by serving 3 months notice or on payment of salary for the corresponding Period in lieu thereof. The Secretary of the appellant Board terminated the services of first respondent, a permanent employee with immediate effect on payment of three months ' salary in lieu of three months notice without giving any reasons under Regulation 34 of the Board 's Regulations. There was nothing in the order which could possibly be said to attach any stigma to the respondent The respondent filed a writ petition in the High Court for quashing the impugned order. The High Court came to the conclusion that Regulation 34 was arbitrary in nature and suffered from the vice of enabling discrimination and therefore it struck down the first paragraph of Regulation 34 and as a consequence quashed the order terminating the services of the first respondent. In an appeal to this Court, the appellant contended that section 18A and 19 of the Electricity Supply Act laid down sufficient guidelines for the exercise of the power under Regulation 34 and in any case the power to terminate the services of a permanent employee was vested in higher ranking officials and might be expected to be exercised in a reasonable way and therefore Regulation 34 did not offend Article 14 of the Constitution. 1015 Dismissing the appeal, ^ HELD: Article 14 has been interpreted in several decisions of the Court and conferment and exercise of arbitrary power on and by the State or its instrumentalities have been frowned upon and struck down by this Court as offending Article 14. [1017G] In the instant case, on the face of it the Regulation is totally arbitrary and confers on the Board a power which is capable of vicious discrimination. It is a naked 'hire and fire ' rule, the time for banishing which altogether from employer employee relationship is fast approaching Its only parallel is to be found in the Henry VIII class so familiar to administrative lawyers. [10 1017E F] Workman, Hindustan Steel Ltd. vs Hindustan Steel Ltd., ; followed section section Muley vs J. R. D. Tata and Ors., [1979] 2 section L. R. 438, approved. Moti Ram Deka vs North East frontier Railway; , , referred to. Manohar p. Kharkhar vs Raghuraj, [1981] II L L J. 459, overruled.

Appeal No. 1191 of 1967. Appeal by special leave from the judgment and order dated May 23, 1962 of the Allahabad High Court in Special Appeal No. 592 of 1961. C. B. Agarwala and 0. P. Rana, for the appellants. The respondent did not appear. The Judgment of the Court as delivered by Sikri, J. This appeal by special leave is directed against the judgment of the Allahabad High Court whereby it allowed the 267 writ petition file by the respondent, Kumari Chittra Srivastava, hereinafter referred to as the petitioner, and quashed the impugned order but left it open to the Board of High School and Intermediate Education, hereinafter referred to as the Board, to reconsider the case after giving the petitioner a chance to offer her explanation. The facts are not in dispute and the only question which arises is whether in the circumstances the petitioner was entitled to an opportunity to represent her case before the Board prior to the passing of the impugned order. The relevant facts in brief are these. The petitioner was in 1959 60 session a student of Basant Girls Intermediate College, Varanasi. She appeared at the Intermediate examination in 1960 but failed. She then joined the Government Inter College for Girls at Jaunpur. Her name was sent up for Intermediate examination to be held in 1961 by the Principal. She appeared in the examination but her result was not declared by the Board. On May 24, 1961, the Board addressed a letter to the Principal making enquiries regarding the attendance of the petitioner. According to the regulations framed by the Board no candidate can be presented for the Intermediate examination unless he/she has attended during two academical years 75% of lectures given in each subject in which the candidate is to be examined. In the case of a failed candidate, like the petitioner, the percentage shall be calculated for one academical year, but Regulation 5(xiii) enables the head of a recognised institution to condone the deficiency in certain cases. This regulation reads "(xiii) The rule regarding minimum attendance shall be strictly enforced. The head of the recognised institution may condone a deficiency in attendance of not more than (a) ten days in the case of a candidate for the High School Examination; and (b) ten lectures (including periods of practical work, if any) given in each subject in the case of a candidate for the Intermediate Examination. All cases in which this privilege is exercised shall be reported to the Director of Education as the Chairman of the Board. In the cases of failed or detained candidates whose attendance of one year will be taken into account, the shortage to be condoned shall be reduced to half." 268 The Principal received the letter when on vacation outside Jaunpur. The Principal replied on June 14, 1961, saying that a proper reply to paragraphs 1 and 2 of the letter will be sent after July 8, 1961. She, however, stated "When Km. Chitra Srivastava absented herself for a pretty long period on account of her illness, the position :was explained to her, besides informing her guardian also who was even called to the office and acquainted with the circumstances. At that time, it was possible for her to make good this shortage by her regular attendance. The teacher in Home Science took leave in February, 1961. Chitra was short in attendance in other subjects also, but she made good the shortage by her regular attendance. When, during the days the classes were held, lectures in other subjects were held and the girl attended there, it was, not considered proper to detain her from appearing at the examination on account of her absence from lectures in a subject in which the required lectures were not held. I got the student admitted to the examination as I was confident that the officers of the Board will agree with my view. " The substance of the letter was that the shortage in lectures was due to the lecturer taking leave. The Board was, however, impatient. It is not clear whether this letter was received by the Board because no reference to it is made in the letter dated July 6, 1961. The Board wrote: "In continuation of this office letter No. E.I./617, dated 24th May, 1961 and telegram dated 24th May, 1961 1 have the honour to inform that you have not furnished the desired information about the student Km. Chitra Srivastava, roll No. 50452. From your previous letter No. 143/E dated 6th May, 1961, ' it is learnt that the admission of the student by you to the examination. by condoning her absence from seven lectures on the subject of Home Science was contrary to rules. Hence the student 's Inter Examination of 1961 is cancelled. Kindly communicate this to the student under intimation to this office." 269 The Principal replied on July 11, 1961, giving details of the lectures attended and requested that the order be cancelled and the severe punishment be not awarded to the petitioner. On October 6, 1961, the petitioner filed a petition under article 226 of the Constitution challenging the impugned order dated July 6, 1961. Mathur, J., dismissed it summarily. On appeal, Srivastava and Katju, JJ., allowed the petition, as mentioned earlier. They were of the view that the Board, while cancelling the examination, acted in a quasi judicial capacity. The Board was "by cancelling the examination inflicting a penalty" and if opportunity had been given to the petitioner to present her case she might have persuaded the Board not to cancel the examination. The learned counsel for the appellant, Mr. C. B. Aggarwal. contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show cause notice . We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority 's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed. We agree with the High Court that the impugned order imposed a penalty. The petitioner has appeared in the examination and answered all the question papers. According to her she had passed. To deny her the fruits of her labour cannot but to be called a penalty. We are unable to appreciate the contention that the Board, in "cancelling her examination" was not exercising quasijudicial functions. The learned counsel urges that this would be, casting a heavy burden on the Board. Principles of natural justice are to some minds burdensome but this price a small price indeed has to be paid if we desire a society governed by the rule of law. We should not be taken to have decided that this rule will also apply when a candidate is refused admission to an examination. We are not concerned with this question and say nothing about it. The learned counsel invites us to hold that the decision of the Board was on the facts correct and that the Board had no power to condone the shortage of 2 lectures. But we decline to into these questions. We are not sitting as a court of appeal and it is for the Board to decide after giving an opportunity to the petitioner and pass such orders as it thinks fit. Whether it has the power to condone the shortage of lectures is for it, at least in the first instance, to decide. 270 The learned counsel further invites us to say that the possible courses which the petitioner 's counsel had outlined before the High Court will not be legal or justified. The petitioner 's counsel had pointed out that the Board could have been persuaded to adopt some of the following courses "(1) To accept the explanation of the principal as valid. (2) To condone the shortage of two lectures which the Principal could not condone. The question whether the Board had power to condone shortage was raised in the Board of High School and Intermediate Education Uttar Pradesh Allahabad and others versus G. Vishwanath Nayar but was not decided and was left open. It is urged on behalf of the appellant that the power to admit a candidate to an examination vests in the Board. The Regulations only provide the extent to which shortage in attendance can be condoned by the heads of institutions. There is nothing in the Regulations to limit the power of the Board itself to admit a candidate to an examination after condoning shortage which could not be condoned by the head of the institution. (3) After noting that a technical breach of rules had been committed the Board or the Chairman may have decided not to take any action. (4) The Board may have framed a new regulation with retrospective effect either permitting the head of the institution to condone a shortage in a case like that of the appellant or permitting the Board itself to make the necessary condonation in such cases. (5) The Board could have given an authoritative interpretation of the words 'lectures given ' in clause (iii) of regulation 5 of chapter XII and decided whether the words covered such cases where the students were present to attend the lecture but it could not be arranged because of some unavoidable reason. " But, like the High Court, we are not called upon to pronounce on their legality or appropriateness at this stage. In the result the appeal fails and is dismissed. As the petitioner (now respondent) is not represented there will be no order as to costs. V.P.S. Appeal dismissed.

In assessment proceedings for the year 1949 50 the, respondents claimed that certain dividend distributed to them by a company was exempt from tax as the fund out of which it was distributed represented capital gains and not "accumulated profit" of the company. The Income tax Officer rejected the claim, but the Appellate Assistant CommissiOner held that a part of the total amount distributed represented capital gains and not being dividend within the meaning of section 2(6A) of the Income tax Act, 1922, the share distributed to the share holders out of that amount was exempt from income tax. This order was reversed in appeal by the Tribunal but the High Court, on a reference, held in favour of the assessee. On appeal to this Court, HELD: Dismissing the appeal: The proviso to the explanation to section 2(6A)(a) clearly enacted that capital gains arising after March 31, 1948 are not liable to be included within the expression "Dividend". Although the definition of dividend in section 2(6A) is an inclusive definition and a receipt by share holders which does not fall within the definition may, in some circumstances, regarded as dividend within the meaning of the Act, it is difficult on that account to hold that capital gains excluded from the definition of dividend by express enactment still fall within the charge of tax. According to the definition in section 2(6A) only the proportionate share of the member out of the accumulated profits (excluding capital gains arising in the excepted period) distributed by the company alone will be deemed the taxable component. [667 D]

ivil Appeals Nos. 384 to 387 of 1978. From the Judgment and Order dated the 18th January, 1977 of the High Court at Madras in T.C. Petitions Nos. 409 to 412 of 1976. S.C. Manchanda and Miss A. Subhashini for the Appellant. Gopala Subramanium and Mrs. section Gopalakrishnan for the Respondent. The Judgment of the Court was delivered by PATHAK, J. These appeals are directed against the judgment of the Madras High Court refusing to call for a reference from the Appellate Tribunal under section 27 (3) of the Wealth Tax Act on the following two questions: "1 Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the liabilities claimed by the assessee, though existence of the very liability was questioned by the assessee, should be allowed as a 'debt owed ' in computing the net wealth of the assessee ? 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the tax liabilities as allowed by the Wealth Tax Officer was not in accordance with law ?" We think that the questions are indeed questions of law and the High Court should have called for a statement of the case from the Appellate Tribunal and rendered its opinion on the said questions. Ordinarily, we would have allowed the appeal and directed the High Court to requisition a reference from the Appellate Tribunal to enable 493 the High Court to decide the two questions of law. But we refrain from doing so as the points have already been considered on the merits by us in judgments delivered today in the appeals listed and heard along with these cases, and therefore we shall express our opinion directly on the two questions. In assessment proceedings under the Wealth Tax Act for the assessment years 1964 65, 1965 66, 1966 67 and 1967 68, the corresponding valuation dates being March 31, 1964, March 31, 1965, March 31, 1966 and March 31, 1967, the assessee claimed a deduction in the computation of the assessee 's net wealth on account of income tax, wealth tax and gift tax liabilities. The Wealth Tax Officer allowed only part of the deductions claimed, and an appeal by the assessee was dismissed by the Appellate Assistant Commissioner of Wealth Tax. In second appeal before the Appellate Tribunal, the assessee filed statements showing particulars of the income tax, wealth tax and gift tax liabilities in respect of the different assessment years. The Appellate Tribunal found that so far as the assessment year 1964 65 was concerned all the demands were raised only after the relevant valuation date, that in respect of the assessment year 1965 66, the demands, except for items Nos. 1 to 5 and 12, were raised subsequent to the relevant valuation date, that in respect of the assessment year 1966 67 all the demands, except items 1 to 3 and 8 to 10, were raised subsequent to the relevant valuation date and that so far as the assessment year 1967 68 was concerned, except the first item, the demands in respect of the rest of the items were raised subsequent to the relevant valuation date. The Appellate Tribunal held, following the judgment of this court in Commissioner of Income Tax vs Keshoram Industries Pvt. Ltd.(1) and H.H. Setu Parvati Bayi vs Commissioner of Wealth Tax, Kerala,(2) that so long as the liability to pay the tax had arisen before the relevant valuation dates it was immaterial that the assessments were quantified after the relevant valuation dates. It was pointed out by the Revenue before the Appellate Tribunal that the income tax liability for the assessment year 1965 66 of Rs. 72,399 and the gift tax liability for the assessment year 1965 66 of Rs. 1,13,650 had been cancelled by the Appellate Assistant Commissioner in appeals against the assessment orders, and those appellate orders of the Appellate Assistant Commissioner had become final in view of the dismissal of the Revenue 's appeals by the Appellate 494 Tribunal, with the result that there was no outstanding demand on account of income tax and gift tax for that year. It was urged that the two sums of income tax liability and gift tax liability would not constitute 'debts owed ' by the assessee and, therefore, would not qualify for deduction under section 2(m) of the Wealth Tax Act. The Appellate Tribunal rejected the contention, holding that the question whether a debt was owed by the assessee must be examined with reference to the position obtaining in the valuation date, and that nothing happening subsequently could be considered in computing the net wealth. It observed that the fact that the assessee had filed appeals subsequent to the valuation dates and that relief had been granted by the Appellate Authority would have no relevance for determining whether a debt was owed on the relevant valuation date. Reference was made to the decision of the Madras High Court in Late P. Appavoo Pillai vs Commissioner of Wealth Tax, Madras (1) We are unable to agree with the view taken by the Appellate Tribunal. Whether a debt was owed by the assessee on the valuation date would depend, as was observed by this Court in Keshoram Industries Pvt. Ltd. (supra) and H.H. Setu Parvati Bayi (supra), on the fact that a liability had already crystalized under the relevant taxing statute on the valuation date. An income tax liability crystallises on the last day of the previous year relevant to the assessment year under the Income Tax Act, a wealth tax liability crystallises on the valuation date for the relevant assessment year under the Wealth Tax Act and a gift tax liability crystallises on the last day of the previous year for the relevant assessment year under the Gift Tax Act. En passant, we may explain why we say that a gift tax liability crystallises on the last day of the pertinent previous year under the Gift Tax Act. Section 3 of the Gift Tax Act levies gift tax in respect of the gifts made by a person during the previous year at the rates specified in the Schedule. Section 13 provides for the filing of a return of the gifts made during the previous year. Section 15 requires the Gift Tax Officer to assess the value of the taxable gifts made during the previous year and determine the amount of gift tax payable. The gift tax so payable is envisaged as a single sum in respect of the totality of the gifts made by the assessee during the previous year. Moreover, the Schedule prescribes graduated scales of rates of gift tax in ascending order. All these considerations point to the conclusion that the liability to gift tax crystallises, not in relation to each gift individually, but in relation 495 to the assessed aggregate value of the gifts made during the previous year. In other words, a gift tax liability crystallises on the last day of the previous year. Now the quantification of the income tax, wealth tax or gift tax liability is determined by a corresponding assessment order, and even if the assessment order is made after the valuation date relevant to the wealth tax assessment in which the claim to deduction is made, there is a debt owed by the assessee on the valuation date. The quantification effected by an assessment order may be varied as the income tax, wealth tax and gift tax case is carried in appeal to the Appellate Assistant Commissioner, or thereafter to the Appellate Tribunal, and indeed even in reference later to the High Court or subsequent appeal to this Court. It is the quantification of the tax liability by the ultimate judicial authority which will determine the amount of the debt owed by the assessee on the valuation date. So long as such ultimate determination indicates the existence of a positive tax liability, it must be held that there is a debt owed by the assessee on the valuation date even though such determination may be subsequent in point of time to the valuation date. If, however, it is found on such ultimate determination that there is no tax liability, it cannot be said that merely because originally a tax liability had been determined and stood existing on the valuation date there was a debt owed by the assessee. The fact cannot be ignored that when the case was carried in appeal or reference it was found by the superior authority that in fact there was no tax liability at all. That final determination, even though rendered after the valuation date, directly relates to the question whether on the valuation date there was a debt owed by the assessee. If the finding is that there was no tax liability, it must be held that there was no debt owed by the assessee on the valuation date. In this regard, we do not agree with what has been said by the Madras High Court to the contrary in P.A. Appavoo Pillai (supra). We are of opinion that the income tax liability for the assessment year 1965 66 of Rs. 72,399 and the gift tax liability for the assessment year 1965 66 of Rs. 1,13,650, subsequently set aside on appeal after the valuation dates, cannot be regarded as debts owed by the assessee on the relevant valuation dates. Towards the close of its order the Appellate Tribunal pointed to the fact that the different demands of tax were served on the assessee subsequent to the respective valuation dates and, on that ground, observed that the tax liabilities did not fall within the prohibition of section 2(m) (iii) (a) and had to be taken into account as debts 496 owed by the assessee on the valuation dates. It seems to us that the Appellate Tribunal has not correctly appreciated the scope of section 2(m) (iii) (a). Section 2(m) (iii) (a) denies deduction to an amount of tax which is outstanding on the valuation date if the assessee contends in appeal, revision or other proceeding that he is not liable to pay the tax. It presupposes that there is a subsisting tax demand and the assessee has challenged its validity. It refers to the initial stage only where an appeal, revision or other proceeding is pending merely. It does not proceed beyond that stage to the point where, in consequence of such appeal, revision or other proceedings, the tax liability has been found to be nil. Once it is determined that the tax liability is nil, it cannot be said that any amount of tax is outstanding. Such a situation does not bring section 2(m) (iii) (a) into operation at all, as is clear indeed from its very terms. If upon the ultimate determination it is found that the amount of tax is nil, the assessee is denied the deduction claimed by him not on the ground of section 2(m) (iii) (a) but because the superior authority has found that there is no tax liability whatever. It must be taken that in law there never was any tax liability. So far as the remaining tax liabilities are concerned, the Tribunal is right in allowing the income tax, wealth tax and gift tax liabilities to be deducted in computing the net wealth of the assessee for the respective assessment years, even though, the assessment orders were finalised after the respective valuation dates. We may point out that it has not been shown to us that the assessee filed appeals questioning the income tax, wealth tax and gift tax Liabilities other than the income tax liability of Rs. 72,399 and the gift tax liability of Rs. 1,13,650 for the assessment years 1965 66 referred to earlier. The questions of which reference was sought by the Revenue are answered accordingly. The appeals are allowed in part in the terms already set out. There is no order as to costs. N.V.K. Appeals partly allowed.

In the General Elections to the Tamil Nadu Assembly held in May 1980, the appellant contested for the llayangudi Assembly Constituency seat and was duly elected as he polled 34437 votes. The first respondent who had polled 34381 votes and missed by a narrow margin of 56 votes filed an election petition before the High Court of Madras on three grounds viz., (a) improper rejection by the Returning Officer of valid votes cast in favour of the respondent; (b) improper reception of invalid votes cast in favour of the appellant and (c) improper treatment of valid votes cast in favour of the first respondent and the 3rd respondent as votes cast in favour of the appellant. The High Court accepted the petition on its finding on the first ground in favour of the Ist respondent and ordered rescrutiny of the votes rejected as invalid. Hence the appeal by special leave. Dismissing the appeal, the Court HELD: 1:1 The pamphlet issued in Tamil titled "A pamphlet showing illustrative cases of valid and invalid postal and ordinary ballot papers "(Ex P3) issued by the chief Electoral Officer, Tamil Nadu is misleading and therefore should be withdrawn. [111 D] 1:2. In the illustration of invalid papers appearing at page 40 of the Book (Ex P3), the major portion of the marking is in the shaded area and a small portion of the mark is in the column of the candidate. Apparently what was intended to be printed was an illustration showing a ballot paper in which the whole of the marking was in the shaded area only without any portion of it being in the column of the candidate. The illustration as printed in the pamphlet obviously conveys the erroneous impression that a ballot paper where the marking is partly in the column of the candidate and partly in the shaded area is to be rejected by the Returning Officer as invalid. This is 105 directly contrary to the intendment of the relevant rule and also the express wording of the instructions issued by the Election Commission. [110 H; 111 A B] In the instant case the Returning Officer was obviously misled by the aforesaid illustration contained in the pamphlet, exhibit P 3 and that was the sole reason why he rejected as invalid the ballot papers where the marking was contained partly in the column of the first respondent and partly on the demarcating line or shaded area. Had the Returning Officer taken the trouble to study the instructions contained in the "Handbook for the Returning Officer" it should have been apparent to him that the illustration aforementioned contained in exhibit P3 did not correctly reflect the position laid down in the rules and instructions. [111 C D] 2:1 The essence of the principle in Rule 39(2) (b) of the Conduct Rules, 1961, is that so long as the ballot paper bears a mark made with the instrument supplied for the purpose, the ballot paper shall not be rejected as invalid, if it is reasonably possible to gather a definite indication from the marking as to the identity of the candidate in favour of whom the vote had been given. [109 C D] 2:2. Nearly 90% of the electorate in this country consists of illiterate and uneducated rural folk totally unacquainted with the intricacies of the rules and technicalities of procedure pertaining to elections. Even if the best of endeavour is made to explain to them such complicated rules and procedures they may not be capable of grasping and fully understanding all the implications and actually carrying them into effect while exercising their franchise. If the right conferred on the people to choose their representatives to the State Legislatures and the Parliament through the process of free and fair elections is to be meaningful the will of the illiterate and unsophisticated voter expressed through a marking on the ballot paper which though not strictly inside the column of the particular candidate is clearly indicative of the identity of the candidate for whom the vote is cast has to be respected and given its full effect. The Election Commission has manifested due awareness of this stark reality while issuing instructions to the Returning Officers regarding the principles to be adopted for rejection of ballot papers in the "Handbook for Returning Officers" published by the Commission in 1982, and also a "Handbook for candidates ' for election to the House of People, Legislative Assemblies of States and Union Territories etc. [109 D G] Observation: In order to avoid a recurrence of such unfortunate instances of illegal rejection of votes on the basis of misleading illustration contained in the pamphlet, exhibit P3, it is essential that immediate action should be taken by the Chief Electoral Officer, Tamil Nadu to withdraw the said pamphlet containing illustrations correctly reflecting the legal position under relevant rules and instructions relating to the scrutiny acceptance or rejection or ballot papers. [111 F G]

Appeal No. 975 of 1964. Appeal by special leave from the judgment and order December 12, 1962, of the Mysore High Court in W.P. No. 531 of 1961. Bishan Narain, Naunit Lal and B.R.G.K. Achar, for the appellant. section K. Venkataranga Iyengar and R. Gopalakrishnan, for the respondent. The judgment of the Court was delivered by Satyanarayana Raju, J. This appeal, by special leave, raises a somewhat important question of all, which is whether the reversion of a Government servant from an officiating post to his substantive post, while his junior is officiating in the higher post, does not, by itself, constitute a reduction in rank within the meaning of article 311(2) of the Constitution. For the purpose of deciding the point raised in the appeal, it would be necessary to state the material facts. The Southern Railway has two grades of Train Examiners, one in the scale of Rs. 100 5 125 6 185 and the other in the scale of Rs. 150 225. The respondent was employed in the lower scale as a Train Examiner. By an order dated April 7, 1959, the respondent was promoted to officiate in the higher scale with a starting salary of Rs. 150 per month. That order read as follows : "2. Sri section Raghavendrachar, TXR YPR in scale Rs. 100 185 is promoted to officiate as TXR in scale Rs. 150 225 on Rs. 150 per month and retained YPR as TXR IC. 185 is promoted to officiate as TXR in scale Rs. 150 225 on Rs. 150 per month and transferred to SBC BG vide item above. Sanction endorsed by D.S. for promotion of items 2 and 3. " 108 There is a note appended to the order which is important "Note: 1. The promotion of items 2 and 3 are purely provisional subject to revision when Divisional Seniority lists are drawn up. " By an order dated November 27, 1959, the respondent was reverted. ]Mat order was as follows : "Sri section Raghavendrachar, TXR/YPR (officiating) in scale Rs. 150 225 is reverted to scale Rs. 100 185 on Rs. 130 per month and transferred to SBC/MG. " On receipt of this order, the respondent made representations to the appellant. The appellant sent to the respondent communication dated May 25, 1960 : "As per the existing instructions an officiating employee with less than 18 months of service in the higher grade may be reverted to lower scale without assigning any reason for such reversion by a competent authority. Since the period of your officiating in scale Rs. 150225 was less than 18 months and since your reversion from scale Rs. 150 225 to Rs. 100 185 has been ordered by a competent authority, no reasons need be assigned as requested in your representation dated 8th/9th December 1959. As regards the confirmation of TXRs in scale Rs. 150 225, who were your juniors while you were officiating in scale Rs. 150 225, 1 have to advise you that consequent on your reversion to scale Rs. 100 185, all your juniors, in scale Rs. 150 225, have become your seniors and their confirmations in preference to you are in order. Regarding your re promotion to scale Rs. 150 225, it will be considered in the normal course according to your, seniority and suitability to hold the post in scale Rs. 150 225." The respondent made a further appeal to the Divisional Superintendent, Mysore, on July 2, 1960 and sent him two reminders. Not having got any response, he filed an appeal on January 31, 1961, to the General Manager, Southern Railway. The respondent sent a reminder to the latter on March 31, 1961. In reply, 109 the Divisional Personnel Officer wrote to the respondent as follows by letter dated April 30, 1961 : Rs. 150 225 (PS) was not a penalty as presumed by you, in your above representations. The vacancy thus released by you in scale Rs. 150 225 (PS) and the vacancies which existed on the date of your reversion were filled up on 14th February 1960. You are therefore eligible to be considered for promotion against a vacancy which occurred after the date of your reversion and not against the vacancies which existed on the date of your reversion and also the vacancy caused by your reversion. No regular vacancy (other than short term leave vacancy) in scale Rs. 150 225 has occurred from the date of your reversion till date. You will therefore be considered for promotion against the next vacancy, subject to the condition of seniority cum suitability, on the basis of which only promotions to non selection posts are to be ordered. As regards seniority, all those hitherto promoted to scale Rs. 150 225 (PS) will automatically rank seniors to you and your seniority if promoted will be reckoned only from the date of your promotion in future vacancy. Your contention that, when you were promoted to officiate for 2 months against the leave vacancy of Shri Venkataraman, as per this office order No. M. 542/PI of 14th November 1960, you should have been continued even after the expiry of the leave vacancy, and that Shri Varghese should have been reverted, is not correct, for the reasons stated in paragraph 2 above. Your representation of 30th January 1961 to GM(P) Madras is therefore withheld. " Aggrieved by the order dated November 27, 1959, the res pondent moved the Mysore High Court, on the failure of his representations to the hierarchy of Departmental Heads, for a writ of certiorari to quash the impugned order made by the appellant. By judgment dated December 12, 1962, a Division Bench of the High Court quashed the order of reversion. The High Court observed that it was not necessary to express any opinion on the question whether the reversion of the respondent on the ground that his work was unsatisfactory amounted to a reduction 110 in rank within the meaning of that expression occurring in article 311(2) of the Constitution. But the High Court held that the reversion of the respondent amounted to a reduction in rank because he was reverted from the higher post to the lower post notwithstanding the fact that his juniors were still retained in the higher posts. In reaching this conclusion the High Court purported to follow the decision of this Court in Madhav Laxman Vaikunthe vs State of Mysore(.). The Divisional Personnel Officer, Southern Railway, Mysore,obtained special leave from this Court against the order of the High Court. It is contended by Mr. Bishan Narain, learned counsel for the appellant, that the High Court misunderstood the ratio of the judgment of this Court in Vaikunthe 's case(1), that there is no right in a Government servant to promotion as of right, that the mere reversion of a Government servant from an officiating post to his substantive post, notwithstanding that his juniors are retained in the higher posts, does not amount to a reduction in rank and the provisions of article 311(2) are not attracted. On the other hand, it is contended by Mr. section K. Venkataranga lyengar, learned counsel for the respondent, that the circumstances of the case clearly indicated that the reversion of the respondent amounted to a reduction in rank and since the procedure prescribed by article 311(2) was not complied with, the order of reversion was bad in law. It may be taken to be settled by the decisions of this Court that since article 311 makes no distinction between permanent and temporary posts, its protection must be held to extend to all government servants holding permanent or temporary posts or officiating in any of them, but that protection is limited to the imposition of three major penalties contemplated by the Service Rules, viz., dismissal or removal or reduction in rank. The first of the cases which may be considered is the decision in Parshotam Lal Dhingra vs Union of India(2), Commonly known as Dhingra 's case. In this case, Das C.J., who spoke for the majority, considered comprehensively the scope and effect of the relevant constitutional provisions, service rules and their impact on the question as to whether reversion of Dhingra offended against the provisions of article 311(2). Dhingra was appointed as a Signaller in 1924 and promoted to the post of Chief Controller in 1950. Both these posts were in Class III Service. In (1) ; (2) ; 111 1951, he was appointed to officiate in Class II Service as Assistant Superintendent, Railway Telegraphs. On certain adverse remarks having been made against him, he was reverted as a subordinate till he made good his 'short comings. Then, Dhingra made a representation. Subsequently, the General Manager gave him notice reverting him to Class III appointment. It was this order which was challenged by Dhingra by a writ petition, in the High Court and, eventually, in this Court. The question for decision was whether the order of the General Manager amounted to reduction in rank within the meaning of article 311(2) of the Constitution, and Dhingra was entitled to a reasonable opportunity to show cause against the order. This Court held that the reversion of an officiating officer to his substantive post did not attract the provisions of article 311(2) and that Dhingra was not entitled to the protection of that article. It is however true that even an officiating government servant may be reverted to his original rank by way of punishment. It was therefore observed in Dhingra 's case(") at p. 863 : "Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Gov ernment had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. " One test for determining whether the termination of service was by way of punishment or otherwise is to ascertain whether under the Service Rules, but for such termination, the servant has the right to hold the post. It was held in Dhingrads case(1) that he was holding an officiating post and had no right under the rules of the Railway Code to continue in it, that under the general law such appointment was terminable at any time on reasonable notice and the reduction could not operate as a forfeiture of any right, that the order of the General Manager visited him with no evil consequences and that the order therefore did no", amount to a reduction in rank. (1) (1958] S.C.R. 828. 112 Vaikunthe 's case(1) was relied upon by the High Court in support of its conclusion that the reversion of the respondent amounted to a reduction in rank. It is therefore necessary to scrutinize the facts of that case. The appellant Vaikunthe, who held the rank of a Mamlatdar in the first grade, and was officiating as District Deputy Collector, was alleged to have wrongly charged travelling allowance for 59 miles instead of 51 and was, as the result of a Departmental enquiry, reverted to his substantive rank for three years and directed to refund the excess he had charged. He made a representation to the Government which was of no avail although the Accountant General was of the opinion that the appellant had not over charged and committed no fraud. Ultimately, the appellant was promoted to the Selection Grade but the order of reversion remained effective and affected his position in the Selection Grade. After retirement he brought a suit for a declaration that the order of reversion was void and for recovery of a certain sum as arrears of salary and allowances. The trial Court held that there was no compliance with the provisions of section 240(3) of the Government of India Act, 1935, granted the declaration but refused the arrears claimed. Vaikunthe filed an appeal and the State a cross objection. The High Court dismissed the appeal and allowed the cross objection, holding that the order of reversion was not a punishment within the meaning of section 240(3) of the 1935 Act. This Court held that the matter was covered by the observations in Dhingra 's case(1) and the tests of punishment laid down by this Court viz., (1) whether the servant had a right to the rank or (2) whether he had been visited with evil consequences of the kind specified therein, and that the second test certainly applied. This Court concluded that Vaikunthe might or might not have the right to hold the higher post, but there could be no doubt that he was visited with evil consequences as a result of the order of reversion. It was there held : "Mere deprivation of higher emoluments, however, in consequence of an order of, reversion could not by itself satisfy that test which must include such other consequences as forfeiture of substantive pay and loss of seniority." Since the requirement of section 240(3) of the 1935 Act, which corresponds to article 311(2) of the Constitution, had not been found to have been fully complied with, the order of reversion was held to be void. (1) ; (2) ; 113 There was an important aspect of this decision which was lost sight of by the High Court. The impugned order there ran as follows : "After careful consideration Government have decided to revert you to Mamlatdar for a period of three years. . It was pointed out in Dhingra 's case( ) that if the order of reversion entailed or provided for the forfeiture of the pay or allowances of the Government servant or loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance might 'Indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government had terminated the employment as and by way of penalty. At p. 891, Sinha, C.J., who spoke for the Court, pointed out: he would have continued as a Deputy Collector but for the Order of the Government, dated August 11, 1948, impugned in this case, as a result of the enquiry held against him, and that his reversion was not as a matter of course or for administrative convenience. The Order, in terms, held him back for three years. (Italics ours). Thus his emoluments, present as well as future, were adversely affected by the Order aforesaid of the Government. In the ordinary course, he would have continued as a Deputy Collector with all the emoluments of the post and would have been entitled to further promotion but for the set back in his service as a result of the adverse finding against him which finding was ultimately declared by the Accountant General to have been under a misapprehension of the true facts. It is true that he was promoted as a result of the Government Order dated March 26, 1951, with effect from August 1, 1950. But that promotion did not entirely cover the ground lost by him as a result of the Government Order impugned in this case. " Again, at p. 893, the learned Chief Justice pointed out"If the loss of the emoluments attaching to the higher rank in which he was officiating was the only consequence of his reversion as a result of the enquiry against him, the appellant would have no cause of (1) 114 action. But it is clear that as a result of the Order dated August 11, 1948 (exhibit 35), the appellant lost his seniority as a Mamlatdar, which was his substantive post. That being so, it was not a simple case of reversion with no evil consequences; it had such consequences as would come within the test of punishment as laid down in Dhingra 's case. " Finally, it was pointed out : "If the reversion had not been for a period of three years, it could not be Said that the appellant had been punished within the meaning of the rule laid down in Dhingra 's Case. It cannot be asserted that his reversion to a substantive post for a period of three years was not by way of punishment. From the facts of this case it is clear that the appellant was on the upward move in the cadre of his service and but for this aberration in his progress to a higher post, he would have, in ordinary course, been promoted as he actually was some time later when the authorities realised perhaps that he had not been justly treated. The real ground on which Vaikunthe 's reversion to his original post of Mamlatdar was held to be a violation of his Constitutional grantee was that his chances of promotion were irrevocably barred for a period of three years. If this aspect of Vaikunthe 's case(1) is borne in mind, it will be found that there is no basic inconsistency between the decisions which have a bearing on the question as to in what cases reversion would amount to a reduction in rank. Even so, it is contended by learned counsel for the respon dent that the real reason which operated on the mind of the appellant was that the respondent 's work in his officiating capacity was unsatisfactory. Assuming that to be so, the question is whether his reversion to his original post, because he was found unsuitable for the higher rank to which he had been given the officiating chance, is valid. In State of Bombay vs F. A. Abraham(2) the respondent held the substantive post of Inspector of Police and had been officiating as Deputy Superintendent of Police. He was reverted to his original rank without being given an opportunity of being heard in respect of the reversion. His request to furnish him with reasons for his reversion was refused. Later, a departmental (1)[1962]1 S.C.R.886. (2) [1962] Supp. 2 S.C.R. 92. 115 enquiry was held behind his back in regard to certain allegations of misconduct made against him in a confidential communication from the District Superintendent of Police to the Deputy Inspector General of Police, but these allegations were not proved at the enquiry. The Inspector General of Police, however, thereafter wrote to the Government that the respondent 's previous record was not satisfactory and that he had been promoted to officiate as Deputy Superintendent of Police in the expectation that he would turn a new leaf. The High Court held, following its earlier decision in M. A. I. Waheed vs State of Madhya Pradesh(1) that if a person officiating in a higher post is reverted to his original post in the normal course, that is, on account of cessation of the vacancy or his failure to acquire the required qualification, the reversion did not amount to a reduction in rank but if he is reverted for unsatisfactory work, then the reversion would amount to a reduction in rank. This Court did not agree with the ob servations in Waheed 's case(1) that when a person officiating in a post s reverted for unsatisfactory work, that reversion would amount to a reduction in rank. This Court took the view that the Government had a right to consider the suitability of the respondent to hold the position to which he had been appointed to officiate and that it was entitled for that purpose to make inquiries about his suitability and that was all what the Government had done in that case. Two more cases cited at the Bar now require to be consider ed. In The High Court, Calcutta vs Amal Kumar Roy (2) this Court held that the word 'rank ' in article 311(2) referred to classification and not to a particular place in the same cadre in the hierarchy of service. The facts of the case were as follows. The respondent was a Munsif in the West Bengal Civil Service (Judicial). When the cases of several Munsifs came up for consideration before the High Court for inclusion in the panel of officers to officiate as Subordinate Judges, the respondent 's name was excluded. On a representation made by him, the respondent was told by the Registrar of the High Court that the Court had decided to consider his case after a year. As a result of such exclu sion, the respondent, who was then the senior most in the list of Munsifs, lost eight places in the cadre of Subordinate Judges before he was actually appointed to act as an Additional Subordinate Judge. His case mainly was that this exclusion by the High Court amounted in law to the penalty of 'withholding of promotion ' without giving him an opportunity to show cause. He pray (1) (2) ; 116 ed that a declaration might be made that he occupied the same position in respect of seniority in the cadre of Subordinate Judges as he would have done if no supersession had taken place and claimed arrears of salary, in a suit filed by him. The trial Court decreed the suit. On behalf of the appellants a preliminary objection was taken in this Court that the controversy raised was not justiciable. This Court held that there was no cause of action for the suit and the appeal must succeed. It was there contended on behalf of the respondent that even though there, might not have been any disciplinary proceed ings taken against him, the effect of the High Court 's order was that he was reduced by eight places in the list of Subordinate Judges and that in law amounted to a reduction in rank within the meaning of article 311 (2) of the Constitution. At p. 453 it was pointed out as follows : "In our opinion, there is no substance in this contention because losing places in the same cadre, namely, of Subordinate Judges does not amount to a reduction in rank within the meaning of article 311(2). The plaintiff sought to argue that 'rank ', in accordance with dictionary meaning, signifies 'relative position or status or place, according to Oxford English Dictionary. The word 'rank ' can be and has been used in different senses in different contexts. The expression 'rank ' in article 3 1 1 (2) has reference to a person 's classification and not his particular place in the same cadre in the hierarchy of the service to which be belongs. Hence, in the context of the Judicial Service of West Bengal, 'reduc tion in rank ' would imply that a person who is already holding the post of a Subordinate Judge has been reduced to the position of a Munsif, the rank of a Subordinate Judge being higher than that of a Munsif. But Subordinate Judges in the same cadre hold the same rank though they have to be listed in order of seniority in the Civil List. Therefore, losing some places in the seniority list is not tantamount to reduction in rank. Hence, it must be held that the, provision , of article 311 (2) of the Constitution are not attracted to this case. " This decision therefore is authority for the position that losing some places in the seniority list is not tantamount to reduction in rank 117 The respondent relied upon the decision of this Court in P. C. Wadhwa vs Union of India(1). There, the appellant, a member of the Indian Police Service and holding the substantive rank of Assistant Superintendent of Police (a post in the junior time scale of pay) in the State of Punjab, was promoted to officiate as Superintendent of Police, which was a post carrying a higher salary in the senior time scale, and posted as Additional Superintendent of Police. After he had earned one increment in that post, he was served with a charge sheet and before the enquiry, which had been ordered, had started, he was reverted to his substantive rank of Assistant Superintendent of Police, the ground suggested for reversion being unsatisfactory conduct. No details of the unsatisfactory conduct were specified and the appellant was not asked for any explanation. At the time when the appellant was reverted officers junior to him in the I.P.S. Cadre of the State were officiating in the senior scale. The order entailed loss of pay as well as loss of seniority and postponement of future chances of promotion. It was held that the order of reversion made against the appellant was in effect a 'reduction in rank ' within the meaning of article 311(2) of the Constitution and inasmuch as he was given no opportunity of showing cause against the said order of reversion, there was violation of article 311. On a consideration of the circumstances of the case, this Court reached the conclusion that the action of the Government reverting the appellant was mala fide. But that was not the sole ground on which the order of reversion was held to be bad. After an examination of the legal position from the large body of rules to which reference was made, it was held that in so far as the Indian Police Service is concerned there was only one cadre, that appointment to posts borne on that cadre were to be made by direct recruitment except to the extent of 25 per cent of the senior posts which may be filled by promotion from the State Police Service. A special feature of the All India Services like the Indian Police Service and the Indian Civil Service is that pro motion is a matter of right. It was for this reason that this Court, by a majority pointed out at p. 622 that in the case of ' those services there was no rule which, specifically provided that an officer had to be freshly appointed to a post carrying a salary in the senior scale of pay. (1) 118 At p. 627 it was said "In our opinion, the whole scheme of the rules indicates that a person borne on the junior scale of pay has a right to hold a post on the senior scale of pay depending upon the availability of, a post and his seniority in the junior scale of pay. If a person hold ing a post in the senior scale, though in an officiating capacity, is found to be unfit to hold that post, action will have to be taken against him as required by r. 5 of Discipline and Appeal Rules because his reversion to a post in the lower scale would amount to reduction in rank within the meaning of article 311 of the Constitution. " On a consideration of the circumstances of that case, it is clear that the decision itself proceeded on the basic fact that for members of All India Services like the Indian Police Service, promotion was a matter of right and special considerations would have to be applied to them. Now, in the light of the principles established by the above decisions, we may consider the respondent 's case. The Southern Railway has two grades of Train Examiners. The respondent and one James Blazey were promoted from the lower grade to officiate in the higher grade. The respondent was shown at item No. 2 and James Blazey at item No. 3 in the promotion list. A note was appended to the order that the promotion of the respondent and Blazey were 'purely provisional subject to revision when seniority lists were drawn up for the Division '. By reason of the order dated November 27, 1959, the respondent was reverted to the lower grade while Blazey was retained in the higher grade. The case of the respondent is that Blazey was junior to him and that since he was reverted while Blazey was not, it would amount to a reduction in rank so far as he was concerned. It is plain that what he complains of is that he lost his seniority by reason of the retention of Blazey in the officiating higher post. The respondent 's rank in the substantive post i.e., in the lower grade, was in no way affected by this. In the substantive grade, the respondent retained his rank. It may also be added that he was visited with no penal consequences. It is no doubt true that it is not the form but the substance that matters, but once it is accepted that the respondent has no right to the post to which he was provisionally promoted, there can be no doubt that his reversion does not amount to a reduction in rank. 119 None of the decisions considered above lends support to the contention for the respondent. It was finally argued that the procedure prescribed by rr. 1609 to 1619 of the rules contained 'in the Indian Railway Establishment Code, Vol. I., were contravened. Rule 1609 reads "As a general rule, in no circumstances, should a gazetted railway servant be kept in ignorance for any length of time that his superiors, after sufficient experience of his work, are dissatisfied with him; where a warning might eradicate a particular fault, the advantages of prompt communication are obvious. On the other hand, the communication of any adverse remarks removed from their context is likely to give a misleading impression to the gazetted railway servant concerned. The procedure detailed in rule 1610 should therefore be followed. " Rules 1609 to 1618 apply only to gazetted railway servants. 'Me respondent is not a gazetted railway servant and there is no question of his claiming that he is entitled to the right given under the above rules. Rule 1619 refers to non gazetted railway servants. That rule Provides that in general conformity with the principles laid down in the preceding rules applicable to Gazetted Railway Servants, a General Manager may frame detailed rules for the preparation, submission and disposal of confidential reports on non gazetted railway servants. Learned counsel for the respondent could not place before us those rules, if any. The contentions raised by the respondent having been nega tived, this appeal must succeed, and it is accordingly allowed, but, in the circumstances of the case, there will be no order as to costs. Appeal allowed.

The petitioner was detained under rule 30 of the Defence of India Rules 1962, by an order of the District Magistrate and the necessary formalities were gone through. He filed a petition under article 32 and contended : (1) The order of the District Magistrate was mala fide as he had not applied his mind to tile specific activities of the petitioner and there was complete absence of material before him to suggest that the conduct of the petitioner would be prejudicial to the defence of India etc. (2) One of the grounds of detention mentioned in the order was that the petitioner was a member of the Leftist Communist Party of India and Secretary of one of its branches. This consideration was not relevant as the said party had not been declared illegal or banned by the Government. HELD : (i) It was open to the petitioner to challenge his detention on the ground of mala fide or on the ground that all or any of the grounds mentioned in the order of detention were irrelevant. Such pleas were not covered by article 358 and were outside the purview of the Presidential Orders under article 359(1). [576 D] Makhan Singh Tarsikka vs State of Punjab, referred to. (ii) Taking into account the affidavit filed by the District Magistrate it could not be said that he did not apply his mind to the specific activities of the petitioner or that there was no material before him to justify the order. [577 C] (iii) It was not correct to State that the activities of the Leftist wing of the Communist Party cannot in any circumstances be illegal and would necessarily be irrelevant merely because the Government of India has not declared the Party illegal or imposed a ban. In the light of the reports received by the District Magistrate the political association of the petitioner and his membership of a particular political group was a relevant consideration in the matter of detention of the petitioner. This ground had close and proximate connection with the security of State and maintenance of public order as contemplated by rule 30 of the Defence of India Rules. [578 A C]

t Petition No. 8118 of 1983. Under article 129 of the Constitution read with Section 15 of the . 762 Subhash Sharma, N. M. Popli and K. R. R. Pillai for the petitioner. section N. Kacker and Altaf Ahmad for Respondent No. 1. M. C. Bhandare E. C. Agarwala and Mrs. Indira Sawhney for Respondent. The Judgment of the Court was delivered by CHANDRACHUD, C.J. This is a petition asking that the respondents be committed for contempt for certain statements allegedly made by Respondent 1, who is the Chief Minister of Jammu and Kashmir. Respondent 2 is the Editor of a newspaper called Daily Kashmir Times in which those statements were published, while Respondent 3 is its correspondent. In the issue of the Daily Kashmir Times dated November 13, 1982, a news item appeared under the caption "CM asks engineers to forcibly occupy club building". According to the report, the Chief Minister, while addressing the annual general meeting of the Institute of Engineers, said that the engineers should occupy a certain building forcibly as it would not be possible for them to evict the Amar Singh Club through the normal legal process and that he would provide the necessary police assistance for that purpose. The report says that the Chief Minister advised the Institute of Engineers to move quickly in the matter before the management of the Club could obtain a stay order from the Court. Another news item appeared in the same newspaper on November 23, 1982 under the caption "Chief Minister says he will never accept courts ' stay orders". According to the report, the Chief Minister, while addressing a rally of Judicial Employees ' Welfare Association, denounced and ridiculed the judiciary by saying that "justice is being bought in the judicial courts". Taking exception to the frequent stay orders issued by the Courts against the Government, the Chief Minister is alleged to have said: "I will never honour these stay orders even if I am hanged", that justice could be bought with money and that this task could be performed conveniently by any leading lawyer. The news item concludes by saying that later, the Chief Minister expressed his regret to the Chief Justice and other Judges of the High Court who were present at the meeting, explaining that the strong words used by him were the voice of his conscience but, otherwise, he had the greatest regard 763 for the judiciary, and that he only wanted quick justice for the people. On March 18, 1983 a notice was issued by this Court to the respondents asking them to show cause why action under the should not be taken against them. Since one of the respondents is a Chief Minister, we assumed that there would be no difficulty in serving the notice upon him and he would file his reply promptly, in view of the seriousness of the allegations made against him. But, until September 26, 1983 no counter affidavit was filed in the matter. When the Contempt Petition was called out on that date, Mr. Altaf Ahmed, accepted the notice on behalf of the Chief Minister. On that date, the Court directed the Chief Minister to file his counter affidavit within four weeks. On October 21, 1983 the Registry submitted a report to the Court that Mr. Altaf Ahmed had not yet filed his appearance for the Chief Minister. On November 21, 1983 an affidavit dated November 9, 1983 of the Chief Minister was taken on record. Since the Chief Minister denied by that affidavit that he had made the kind of statements attributed to him, we issued a specific direction that Respondent 2, the Editor of Daily Kashmir Times, should appear in person before the Court on November 28, 1983. That was with a view to obtaining his explanation as to how the newspaper came to publish the various statements which the Chief Minister denied he had ever made. Respondent 2 appeared before us on November 28, 1983 and stuck to the version published in the newspaper. In the light of that, we reverted to the counter affidavit filed by the Chief Minister when we found that it did not traverse the allegations of the petitioners satisfactorily. We therefore directed him to file a further affidavit dealing with the allegations against him clearly and specifically. In pursuance of that direction, Respondent I filed an affidavit dated December 14, 1983. By his affidavit dated January 9, 1984, Respondent 2 has adhered to his original stand that the report which appeared in the Daily Kashmir Times was true and correct. According to him, the Chief Minister did make the various statements complained of and that his denial is untrue. If we were satisfied that the Chief Minister had made the statements attributed to him, it would have been a serious matter. Then, we could not have dismissed the peroration as an ill tempered 764 outburst of an uninformed person. Considering the high position which Chief Ministers occupy in the public life of our country, their words and deeds have to be presumed to be intended. The defence that what was said or done was not intended is not open to persons occupying high public offices. The formal expression of regard for the courts under the pressure of a contempt notice becomes a mere escape if speeches and writings betray defiance of judicial authority and constitute an exhortation to the public to disregard orders passed by courts. But, the Chief Minister denies to have made the utterances, as stoutly as the editor asserts that the reports of the speeches published in his newspaper are true. There is word against word, and no preponderating circumstance which, objectively, compels the acceptance of the word of one in performance to the word of the other. We have two responsible persons before us who pursue honourable professions: one is the Chief Minister of a State and the other is the editor of a newspaper. Both cannot be true in their contentions before us. One of them has clearly violated the law of contempt. If the Chief Minister said what is alleged, he is in contempt. If he has not, the editor has committed contempt by publishing a false report of a scurrilous speech that was never made. In face of denial by one and an assertion by the other without more, it is difficult to decide who is right. On one hand is the tendency to ridicule the system of justice and malign those who administer it. On the other is the propensity of the fourth estate for some little sensation and its political involvement. When political considerations pollute the stream of life, sifting truth from falsehood becomes a formidable and forbidding task In these circumstances, we are unable to record a positive finding that the allegation that the Chief Minister made the particular statements is proved beyond a reasonable doubt. What is involved in this petition is criminal contempt and, therefore, it is necessary to apply that particular standard of proof. There is one circumstance which puts us on our guard in accepting the contempt petition. That circumstance is that though, during the course of arguments, it was stated at the Bar on behalf of the petitioners that the learned Judges of the Jammu & Kashmir High Court were present at one of the functions and that they walked out of the meeting on hearing the 'abusive ' language used by the Chief Minister, no attempt was made to establish the truth of that assertion. A walk out by Judges of the High Court during the speech of the Chief Minister or soon after he ended it, would have lent considerable weight to the allegation that the statements made by the Chief Minister were open to grave objection. 765 But we record the finding of 'not guilty ' with a caveat. It is not for us to advise a chosen representative of the people as to how he should conduct his public affairs and what precautions he should take in order to protect himself from similar allegations in future. But, it causes us some surprise that there is on official record whatsoever of the speeches made by the Chief Minister at the two functions. He was invited at those functions in his capacity as the Chief Minister. And admittedly, he spoke at those functions. With the little knowledge that we have of these matters, we suppose that when a Chief Minister makes a formal speech, an official record of the speech is generally available. If he speaks from a prepared text, that forms the record of what he spoke. But, whether he speaks from a text or speaks extempore, it is unlikely, in the times in which we live, that a speech made by a Chief Minister on a formal occasion will not be taken down or tape recorded. Tapes have become a part of our life, public and private, sometimes to the point of annoyance. In times when mechanical gadgets have become the order of the day and 'taping ', especially, has become a common practice, it is surprising that no one taped or took down the speeches of a person as important as the Chief Minister. No written record, kept contemporaneously or prepared soon after, is cited to contradict the allegation that the Chief Minister scandalized the Courts and assailed the character of Judges. As we said, it is not for us to advise any one, least of all those who, in the discharge of their onerous responsibilities, have their own select group of advisers. But, we cannot restrain the observation that it is so much safer for persons who have to make frequent public appearances to have their utterances duly put on paper, before of soon after the event. For those who have nothing to conceal or fear, that is a prudent course of action. For the rest, a constant friction with the law of contempt is inevitable. The former will lay their cards on the table and be cleared. The latter have to live in the hope that the rigorous standard of 'proof beyond a reasonable doubt ' will act as their saviour. The latter course of conduct leaves much to be desired from the point of view of men of honour. Courts are not astute to reason to their power to punish any one for criminal contempt. But that reluctance should not be overtaxed. The reluctance of courts to resort to the provisions of the springs from their regard for the rule of law. The role of a prosecutor is incompatible with the role of a judge. In matters involving allegations of criminal contempt of Court, these roles are combined and the Court has to act both as a 766 prosecutor and as a judge. True, that it acts in order to uphold the authority of law and not in defence of this or that particular judge. But an order punishing a person for such contempt is likely to create the impression, more so in the mind of lay observers, that the judges have acted in defence of themselves. Courts do not like to create such an impression even unwittingly. Secondly, the right of free speech is an important right of the citizen, in the exercise of which he is entitled to bring to the notice of the public at large the infirmities from which any institution suffers, including institutions which administer justice. Indeed, the right to offer healthy and constructive criticism which is fair in spirit must be left unimpaired in the interest of public institutions themselves. Critics are instruments of reforms, not those actuated by malice but those who are inspired by the spirit of public weal. Bona fide criticism of any system or institution is aimed at inducing the administrators of that system or institution to look inwards and improve its public image. Courts do not like to assume the posture that they are above criticism and that their functioning needs no improvement. But it is necessary to make it clear that though law does not restrain the expression of disapprobation against what is done in or by courts of law, the liberty of free expression is not to be confounded with a licence to make unfounded allegations of corruption against the judiciary. The abuse of the liberty of free speech and expression carries the case nearer the law of contempt. We would also like to remind those who criticise the judiciary that it has no forum from which to defend itself. The legislature can act in defence of itself from the floor of the House. It enjoys privileges which are beyond the reach of law. The executive is all powerful and has ample resources and media at its command to explain its actions and, if need be, to counter attack. Those who attack the judiciary must remember that they are attacking an institution which is indispensable for the survival of the rule of law but which has no means of defending itself. In the very nature of things, it cannot engage itself in an open war, nor indulge in releasing contradictions. The sward of justice is in the hands of the Goddess of Justice, not in the hands of mortal judges. Therefore, Judges must receive the due protection of law from unfounded attacks on their character. The Chief Minister has stated in his affidavit that he spoke extempore. We are not on that. In the first place, extempore speeches confer no greater immunity on the speaker than the 767 speeches made from prepared texts. Secondly, extempore speeches are not to be made without the application of a careful mind. That is not the definition of an extempore speech. Thirdly, more the extempore, greater the need to keep a written record of the spoken word. In the written record lies the safety of the public speaker, though not, perhaps, the benefit of posterity. In the result, we dismiss the contempt petition. P.B.R. Petition dismissed.

On February 2, 1966, the Respondent No. 1, B. A. Jayaram had been granted by the Regional Transport Authority, Bangalore, a stage carriage permit on the inter state route Guddapah in the State of Andhra Pradesh to Bangalore in the Karnataka State, which was duly countersigned by the State Transport Authority, Andhra Pradesh. On 10.1 1968, the Mysore (Karanataka) State granted its approval under section 68(D)(2) of the Motor Vehicle Act, 1939, to a scheme, popularly known as the "Kolar Pocket Scheme", to nationalize passenger transport service between Bangalore and various places in the Kolar District, as also certain routes within the Kolar District, covering 87 inter state routes referred to in its appendix. Under clause 4 of the "Kolar Pocket Scheme", the existing permit holders on the inter state routes, were permitted to continue to operate such inter state routes subject to the conditions that their permit shall be rendered ineffective for the overlapping portions of the notified routes. The route between Bangalore and Royal pad in the State of Karnataka formed part of the route between Bangalore and Cuddapah and was covered by the Scheme, with the result that the First Respondent 's permit for the said portion of the Bangalore Cuddapah route became ineffective and consequent that the vehicles operated by him could not either pick up or set down passengers on the Bangalore Royalpad portion of the Bangalore Cuddapah route though they could traverse the said portion. On January 24,1973, the first respondent made an application to the Second Respondent the Karnataka State Transport Authority for varying the conditions of the stage carriage permit granted to him by increasing the number of trips on the Bangalore Cuddappah route from one trip per day to two trips per day so as to eliminate one overnight halt at either of the two terminal. The said application having been rejected, the First Respondent filed a writ petition No. 3360/74 which was allowed and a mandamus issued to the Second Respondent to dispose of the application in accordance with law holding that the said Scheme did not ope 769 rate as a bar to increasing the number of trips on an existing inter state route. The Second Respondent accordingly invited representation in connection therewith. In the meantime, the Appellant the Karnataka State Road Transport Corporation, filed on November 27, 1974 a writ petition No. 6399/74 to recall the order made in the said writ petition No. 3360/74 and to rehear it after impleading the Appellant as a respondent thereto. The writ petition was dismissed holding that the appellant was not a necessary party to writ petition No. 3360/74. On December 23/24, 1974, the Second Respondent granted to the first respondent the additional trip applied for by him. Against the order of dismissal of the W.P. 6399/74, the Appellant filed, an appeal No. WA 949/1979 under section 4 of the Karnataka High Court Act, 1961 (Mysore Act V of 1962). On a reference by the Division Bench, the Full Bench by its Judgment delivered on September 19, 1979, opined that "If the condition of a permit for operating a stage carriage over a route is altered by increasing the maximum number of trips over that route specified earlier in the permit such variation of the condition of the permit does not amount to grant of a ner permit". The Third Respondent who had been granted three stage carriage permits on three different inter state routes, namely, Bangalore to Cuddapah, Bangalore Kalabasti, and Bangalore to Vellore applied on June 11, 1979 to the Second Respondent for varying the conditions of the said three permits by increasing the number of vehicles by an additional vehicle on each route and by increasing the number of trips from two to four on each route, that is for two round trips, which were granted. The Fourth respondent who did not file any objection to the applications of the Third Respondent filed three writ petitions being writ petitions Nos. 16247 16249 of 1979 in the High Court against the said orders of variations of the Third Respondent 's permits. The writ petitions having been dismissed he preferred three appeals being W.A. Nos. 1285 87/1979 and an application to implead himself as a respondent in WA No.949/74 filed by the appellant, though he had never objected to the grant of the variation to the First Respondent earlier. The writ appeals were dismissed on 22.2.1980. His application to implead himself as a respondent to the said Writ Appeal No. 949/79 was granted. The Fourth Respondent thereafter filed three special leave petitions Nos. 5141 43 of 1979 against the order dated 22.2.1980 dismissing his appeals. He has also filed another special leave petition No. 4771/80 against the Judgment in W.A. No. 949/74 by virtue of his having been allowed to be impleaded by the High Court of Karnataka as third respondent thereto though it was not all necessary since in the writ appeal No. 949 of 1974 which was dismissed on 22.2.1980, the Karnataka High Court granted to the appellant a certificate of fitness to appeal to the Supreme Court. Dismissing the appeal, the Court ^ HELD: 1: 1. Section 57(8) of the does not create a legal fiction and grant of an application for variations in the conditions of a permit in respect of matter set out in section 57(8) does not result in the grant of a new permit. Admittedly the language of sub section (8) is not one which is normally used by legislatures in creating a legal fiction for sub.s. (8) does not state that an application of the nature referred in that sub section is to be deemed to be an application for the grant of a new permit. [787D E] 1: 2. Section 57 is a procedural section. Its various sub sections form 770 an integral whole providing for the manner in which an application for variation of certain conditions of a permit is to be made, the mode of inviting objections thereto and the disposal of such applications and objections. [787E F] 1: 3. Reading sub section (8) in the context of sub sections (3) to (7) and in juxtaposition with them, it is clear that the legislative instant in enacting that sub section was to prescribe the procedure to be followed when an application for variation of the conditions of a permit referred to in that sub section is made, this procedure being the same as is laid down in sub sections (3) to (7) with respect to an application for a new stage carriage permit or a new public carrier 's permit. It is for the purpose of providing that the procedure to be followed in the case of an application made under sub sections (8) is to be the same as the procedure to be followed in the case of an application for a new permit that sub section (8) uses the words "shall be treated as an application for the grant of a new permit. " By the use of these words what sub section (8) does is to incorporate in it the provisions of sub sections (3) to (7). This is a very different thing from enacting a legal fiction. [787B D] East Eng. Dwelling Co. Ltd. vs Finsbury Borough Council, [1951] 2 All. E.R. p. 587, 589 H.L.; quoted with approval. State of Bombay vs Pandurang Vinayak Chaphalkar and others. [1953] S.C.R. p. 773, 778 9; M/s. Shivchand Amolokchand vs Regional Transport Authority and Anr. [1984] I S.C.R. 288=A.I.R. ; followed. Assuming that the application for variation of the conditions of a permit referred to in sub section (8) of section 57 is to be deemed to be by a fiction of law to be an application for a new permit, the question to be considered is for what purpose is such an application to be deemed to be an application for grant of a new permit. Reading sub sections (3) to (8) of section 57 as a whole, it is clear that the only purpose is to apply to such an application for variation the procedure prescribed by sub sections (3) to (7) of section 57 and not for the purpose of providing that when the application for variation is granted, the permit so varied would be deemed to be a new permit. If the permit so varied were to be deemed to be a new permit, the result would be anomalous. [789A C] Ex parte Walton, In Re Levy ; 756 CA; Arthur Hill vs East and West Dock Co. , 456; The Bengal Immunity Co. Ltd. vs The State of Bihar and others, 647; The Commissioner of Income tax, Bombay City, Bombay vs Amarchand N. Shroff [1963] Supp. I S.C.R. 699, 709; Maharani Madalasa Devi vs M. Ramnarayan (P) Ltd. and others; , , 424; Commissioner of Income tax, Gujarat vs Vadialal Lalubhai, ; , 1064; referred to. In the case of an existing inter state permit exempted under the said Scheme an increase in the number of trips or the number of vehicles allowed to he operated under such a permit would not be inconsistent with the provision of the said Scheme. There is no inconsistency between an increase in the number of vehicles or trips allowed under such a permit and the provisions of the said scheme. So far as the portions of the interstate route covered by the said scheme are concerned, the permits of the existing permit holders have been 771 rendered ineffective. Further by the said Scheme as notified by a notification dated January 10, 1980, the existing permit holders are not allowed to pick up or set down passengers on these portions of the notified routes. Whether one vehicle or more traverse these portions or whether the same vehicle traverses such portion more than once cannot in any manner affect the services operated by the Appellant on such portions since no passengers are allowed to be picked up or set down on such portions All that would happen is that these vehicles, in the source of their inter state operation would traverse these portions of the notified routes without in any way operating as stage carriages for such portion . [790C F]

Appeal No. 243 of 1971. Appeal by special leave from the judgment and order dated September 3, 1970 of the Madhya Pradesh High Court in Miscellaneous Petition No. 256 of 1970. 797 C. K. Daphtary, L. M. Singhvi, section K. Mehta, K. L. Mehta and K. R. Nagaraja, for the appellant. B. Sen and I. N. Shroff, for respondents Nos. 1, 3 and 4. section section Khanduja, section K. Dhingra and Promod Swaroop for res pondent No. 2. It may at the outset be mentioned that the appointment of the Vice Chancollor of the Saugar University is made by the Chancellor of that University under section 13 of the University of Saugar Act, 1946 (hereinafter referred to as "the Act") from 1 panel of not less than three persons recommended by the Committee constituted under sub section (2) of that section. The Committee to be constituted under sub section (2) was to consist of three persons, two of whom shall be elected by the Executive Council by single transferable vote from amongst persons not connected with the University or a College and the third shall be. nominated 'by the 'Chancellor who was, also empowered to appoint one of them as Chairman of the Committee. It is unnecessary to refer to other provisions of this section because these are not relevant for the purpose of this appeal. It appears that under the above provisions a Committee to submit a panel of names for the appointment of a Vice Chancellor for the University was duly constituted consisting of two persons elected by the executive Committee of the University, namely, G. K. Shinde, Retired Chief Justice and Justice T. P. Naik of the Madhya Pradesh High Court while the third member Shri C. B. Agarwal Retired Judge of the, Allahabad High Court was nominated by tfie Chancellor, Rajmata Vijaya Raje Scindia who also appointed G. K. Shinde as the Chairman of the Committee. The Chairman thereafter appears to have carried on a correspondence to fix, a convenient place and time for the meeting, which was ultimately fixed at Indore on the 4th of April 1970. Justice Naik was, however, unable to attend the meeting and in, his absence the other two persons, Shri Shinde panel of and Shri Agrawal met; as a Committee and submitteds names from which the Chancellor appointed the appellant on 7th April 1970 as a vice Chancellor with effect from 22nd June 1970 for, a period of five years. The appellant at the time of the appointment, it seems, was acting as Vice Chancellor. 1061SupCI/72 798 On the 9th of April 1970, the Governor of Madhya Pradesh, Shri K. C., Reddy promulgated Ordinance No. I of 1970 by section 2 of which sub section (1) of section II was substituted by a new sub section (1) where under the Governor of Madhya Pradesh was made an ex officio Chancellor of that University. By section 3, it was provided that as from the date of the coming into force of that Ordinance, the Chancellor in office immediately, before the date aforesaid shall cease to hold office of the Chancellor and the Governor of Madhya Pradesh shall assume the said office. By virtue of this Ordinance Rajmata Vijaya Raje Scindia ceased to be. the Chancellor. On the 23rd April 1970, the Governor again passed another Ordinance by section 2 of which, he substituted section 43 of the Act by a new section 43. By section 3 a new section 43A was also added. Section 4 made the amendments made by sections 2 and 3 to operate retrospectively as from the commencement of the original Act. The amended sections 43 and 43A are as follows "43. If any question arises whether any person hi,,, been duly appointed, elected, nominated or coopted as, or is entitled to be, a member of any authority or other body of the University or any officer of the University, the matter shall be referred to the Chancellor whose decision thereon shall be final. 43A. The Chancellor may, either on his own motion or on the application of any party interested, review any order passed by himself or his predecessor in office if he is of the opinion that it is not in accordance with the provisions of this Act, the statutes, the Ordinance or the Regulations or is otherwise improper and pass such orders in reference thereto as he may think fit." After the above Ordinances were promulgated, the Secretary to the Governor of Madhya Pradesh wrote on the 20th May 1970 to the appellant as follows : "The question has come up before the Chancellor whether the meeting of the committee constituted by his predecessor under section 1 3 (2) (9 the Act held on 4th April 1970 at Indore at which only two members out of the three were present was legal, and whether the recommendations made by the committee at that meeting were legally valid. The Chancellor has been advised that the meeting held on the 4th April with only two men present and. the decisions taken at the meeting .were not legal. As, a consequence, the orders issued by the University office dated 14th April would have to be rescinded. 799 Before the Chancellor takes action in accordance with legal advice, he has desired that you should be asked if you have anything to state why such action should not be taken. I am desired to request you to send your reply as early as possible, and at the latest within a week". To this letter the appellant sent a reply on the 9th June 1970 after having earlier obitained an extension of time. In that reply he tried to make out a case that the recommendation of the Committee of two members out of three was perfectly valid and in support of it he cited various authorities and also a precedent of the same Governor who as the Chancellor of Indore University seems to have maintained the selection made 'by his predecessor in similar circumstances. The Governor did not, however, accept the appellant 's plea but passed the following impugned orders on the 15th June 1970 : "WHEREAS, on applications made in that behalf, the Chancellor is of the opinion that order dated the 7th April 1970, passed by his predecessor in office appointing Shri Ishwar Chandra as Vice Chancellor of the University of Saugar with effect from the 22nd June 1970, for a period of five years is not in accordance with provisions of section 13 of the University of Saugar Act, 1946 (XVI of 1946) (hereinafter referred to as the said Act); NOW, THEREFORE, in exercise of the powers conferred by section 43A of the said Act, 1, the Chancellor of the University of Saugar, hereby (i) cancel the aforementioned order dated the 7th April 1970 appointing Shri Ishwar Chandra as ViceChancellor; and (ii) direct that the committee be constituted for submission of panel in accordance with the provisions of section 13 of the said Act". On the 1st July 1970, a Writ Petition was filed in the High Court of Madhya Pradesh and it appears that on the 3rd July 1970 the Court directed the appellant to produce the correspondence between the Chairman, and the members of the Selection Committee in respect of the meeting to be held to recommend the names for the appointment of a Vice Chancellor. The appellant, if seems, produced the correspondence with an affidavit on the 25th July 1970 stating that he had obtained the correspondence from the Chairman of the Committee. the former Chief,Justice Shinde. On the ' 3rd of September 1970 'rule nisi was refused. 800 On the 19th September 1970 die application for leave to appeal to the Supreme, Court was also rejected. In the latter order two facts had 'been stated which have been challenged as incorrect. The first one was that the Chairman had at first fixed Bhopal as the venue of the meeting and secondly.that as the working Vice Chancellor of the University, the petitioner had access to all the documents relating to the meeting and his detailed reply given to the Chancellor was grounded on some of them. Though there is some justification in these contentions what has to be seen is whether the order rejecting the Writ Petition was justified, and if so, now that the order of the Chancellor has been impugned, i.e that order valid. It is clear from the Governor 's impugned order that the appellant 's appointment was held to be invalid because only two members of the Committee were present at the meeting. The High Court while holding that in the absence of any provision in the relevant enactment or the rules or regulations made thereunder, a majority of members of a selection committee like the one in the case before them would constitute the quorum, however presumed that the question for consideration of the Chancellor was not merely one relating to the existence of the quorum requisite for a valid meeting but something different. On that assumption it examined the correspondence which ensued between the Chairman and Justice T. P. Naik to ascertain whether in fact a valid meeting had been called. According to the learned Judges, Justice Naik had written to the Chairman to say that he, the Chairman, was determined to hold the meeting presumably in his absence, and, therefore, the High Court thought that if the Chancellor, acting under section 43A of the Act formed the opinion that the meeting held on that date was not legal, it cannot be said that there was no prima facie material for the formation of that opinion, reached by him after giving to the, petitioner an oppor tunity to state why the action proposed should not be taken. The assumption in this order rejecting the Writ Petition is not warranted, firstly, because the correspondence does not show that there was any deliberate attempt made by the Chairman to exclude one of the members in this case, Justice T. P. Naik, and secondly, that the Chancellor had because of this exclusion, declared the meeting held on the 4th April 1970 as not being valid. We have already pointed out that the Chancellor was merely concerned with the legality of the recommendation made by two out of three members and not that,any attempt was made by the ' Chairman, to, exclude one of the members, Neither the showcase notice, nor the reply given by the appellant to that notice, nor even: the order of the Chancellor indicates any such ground as that assumed by the High Court to form the basis of the,Chancellor 's order. The correspondence shows that the Chairman 801 had written a letter on the 12th February 1970 in which , he inquired of Justice Naik whether the 7th and 8th March 1970 would suit him to meet at Bhopal to consider the names for the panel. Later on the 20th February 1970, he wrote another letter saying that the other member was abroad, and therefore, the meeting which was proposed to be held on the 7th or 8th cannot be held and that he would let him know when a new date was fixed. In fact, Justice Naik replied on the 27th February 1970 acknow ledging these letters and asking him to let him know the date of the meeting as and when fixed. On the 8th March 1970 Mr. Shinde again wrote to Justice Naik fixing the meeting on the 12th March 1970 at 10.30 a.m. at Indore and also suggested that if necessary they may meet the next day, the 22nd March 1970. On the 16th March 1970 Shinde sent a telegram to Justice Naik asking him to wire if 4th April was suitable at Indore. On the 18th March 1970, he again sent a telegram to him saying : "Doctors Forbid travel stop wire whether 4th & 11th April suitable for Indore". Justice Naik sent two telegrams, one on the 21st March 1970 saying that 4th is suitable at Saugar or Bhopal and another on the 27th March 1970 stating that both 4th and lath suitable at Saugar or Bhopal. He also wrote two letters on the 26th and 27th to Shinde. Shinde had earlier written on the, 24th March 1970 to Justice Naik in which he said as follows "The contents of your telegram, were conveyed to me on the phone today. It appears that 4th and 11th. April both are suitable to you at Saugar and Bhopal. As I told you before, I am recovering from the attack of virus fever and am, therefore, not, ' strong enough to undertake a car journey of 120 miles to, Bhopal. There is no @ convenient plan ,to come: to Bbopal either. If I come by plane I shall have to stay over the night at the Circuit House and as I am still on diet, the Circuit House food will not suit me. As you can come up to Bhopal you can easily come to Indore either by Car or 'by Plane. The plane leaves Bhopal at about 9.00 a.m. and reaches Indore at about 9.30 am. After attending the meeting you can leave by plane which leaves for Bhopal at about 2.00 p.m. As far as Lunch is concerned, if you let me know if you are vegetarian or non vegetarian, I can arrange to give you lunch at my place. If it is impossible for You to come to Indore I would request you to send me your suggestions regarding suitable names for the post of Vice Chancellor of the Saugar University by the 3rd of April. I would, however, request you to make it colonyient to attend the meeting at Indofe. I have already sent you a tele gram to the effect that the meeting is fixed on the 4th 802 of April at Indore in the Meeting Room of the University of Indore at 10.30 a.m." Hoping to hear from you by the return of post and with kind regards". Before this letter reached to the telegram received by him, Justice Naik wrote a letter to Shinde as follows : "I am in receipt of your telegram intimating to me that you have fixed the meeting to consider panel of names for Saugar University on the 4th of April 1970, at 10.30 a.m. at Indore in the Indore University. I regret my inability to be present at Indore on the date and time specified, though I may be able to attend the meeting if 'the venue is changed to Bhopal. It is very surprising that you should have fixed the meeting on the 4th of April at Indore, even though I had informed you by a telegram on the 17th of March 1970, that it would not be possible for me to attend it there on that date. Anyway, knowing full well that it would not be pos sible for me to be present at Indore at 10.30 a.m. on April 4, 1970, you seem determined to hold the meeting there presumably in my absence. I can only regret your decision. If you are still interested in having my presence for the meeting, you may fix it either on the 4th or the, 11th April 1970 at Saugar or Bhopal, though Bhopal would be more convenient to me personality. I hope you have recovered from the effects of your illness by now". This letter shows that though Justice Naik knew about the illness of Shinde, he somehow seems to have assumed, and if we may say so, without justification that Shinde was determined to hold it there, presumably in his absence. On the 27th March 1970, the next day, he however, after the receipt of the letter of the 24th instant from Side did not take up the attitude that the meeting was being held presumably to keep him away from attending it. Justice Naik, however, tried to explain his difficulty. He said : "I am in receipt of your letter dated 24th March 1970. 1 am sorry to note that you have not yet recovered from the effects of your illness. I do hope you shall soon get well. 803 As for my coming to Indore, I had considered the possibility of my going there by. air from Bhopal but I am informed that the journey is very bumpy these days due to weather conditions and I do get terribly sick if the journey is bumpy. I had, therefore, to give up the idea of going by air, and as I cannot spare more than a day for the meeting, I had intimated to you that it would not be possible for me to come to Indore for the meeting scheduled for the 4th of April 1970 at 10.30 a.m. in Indore University. As for your kindly suggestion that I may by a letter suggest names to you for your consideration, I am of opinion that it would not only not be fair to the persons whose names I may suggest but also not be in keeping with the letter and spirit of the Saugar University Act. With kind regards". This letter clearly negatives the assumption in the High Court 's order that Shinde was trying to keep out Justice Naik from the meeting. On the other hand, Shinde in that letter had requested Justice Naik to suggest names of persons to be considered which prima facie negatives any intention on his part to keep Justice Naik away from the meeting. There is also nothing in the materials on the record to show that the correspondence cited above was persued by the Chancellor either at the time when the show cause notice was given to the appellant or at the time of making the impugned Order. It cannot, therefore, be assumed that the Governor was influenced by the above correspondence. It is rather unfortunate that the appellant 's Writ Petition was dismissed in limited and without a proper appreciation of all the relevant facts. There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended. The High Court delivered into the correspondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the Writ Petition in limine, which in our view, was not justified. It is also not denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient notice was given to all the three members. If for one reason or the other one of them could not attend, that does not make the meeting of others illegal. In such circumstances, where there is no rule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered there at cannot be held to be invalid. 804 This proposition is well recognised and is also so stated in Halsbury 's Laws of England, Third Edition (Vol. IX, page 48, Para 95). It is, therefore, unnecessary to refer to any decisions on the subject. In the view we have taken, the appeal is allowed with costs against respondent 3, the order of the Chancellor revoking the appointment of the appellant is set aside and the appellant is declared to have been validly appointed as Vice Chancellor Of the Saugar University as from the 22nd June 1970. G.C. Appeal allowed.

Section 34 of the Indian Penal Code is merely explanatory. It does not create any specific offence. Under this section several persons must be actuated by a common intention and when in further (1) A.I.R. 1936 Lah. 1202 ance of that common intention a criminal act is done by them, each of them is liable for that act as if the act had been done by him alone. There is a clear distinction between the provisions of section 34 and section 149 of the Indian Penal Code and the two sections are not to be confused. The principal element in section 34 of the Indian Penal Code is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. There is no question of common intention in section 149 of the Indian Penal Code. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and the other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence. There is a difference between object and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in one respect namely that they are all unlawful, while the element of participation in action, which is the leading feature of section 34, is replaced in section 149 by membership of the assembly at the time of the committing of the offence. A charge for a substantive offence under section 302, or section 325 of the Indian Penal Code, etc. is for a distinct and separate offence from that under section 302, read with section 149 or section 325, read with section 149, etc. A person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by section 233 of the Code of Criminal Procedure. There was no room for the application of section 236 of the Code of Criminal Procedure to the facts of the present case. The provisions of section 236 of the Code of Criminal Procedure can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed. In the present case there was no doubt about the facts and if the allegation against the appellant that he had caused the injuries to the deceeased with takwa was established by evidence, then there could be no doubt that the offence of murder had been committed, 1203 In the present case there was no question of any error, omission or irregularity, in the charge within the meaning of section 537 of the Code of Criminal Procedure because no charge under section 302 of the Indian Penal Code was in fact framed. There was an illegality in the present case and not an irregularity which was curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure. Assuming however that there was merely an irregularity which was curable, the irregularity in the circumstances of the case was not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code. By framing a charge under section 302, read with section 149, Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution ease. Barendra Kumar Ghosh vs Emperor ( (1925] I.L.R. 52 Cal. 197), Queen vs Sabid Ali and others ( [1873] 20 W.R. (Cr.) 5), Panchu Das vs Emperor ( Cal. 698), Beazuddi and Others vs King Emperor ([1901] , Emperor vs Madan Mandal and Others ( Cal. 662), Theethumalai Gounder and Others vs King Emperor ([1924] I.L.R. , Queen Empress vs Bisheshar and Others ( All. 645), Taikkottathil Kunheen ( [1923] 18 L.W. 946), Bamasray Ahir vs King Emperor ( Patna 484), Sheo Ram and Others vs Emperor (A.I.R. 1948 All. 162), and Karnail Singh and another vs State of Punjab ( , referred to.

Appeal No. 1222 of 1966. Appeal from the judgment and order dated March 14 1966 Appeal of the Punjab High Court (Circuit Bench), at Delhi in Civil Writ No. 832 D of 1965. section V. Gupte, Solicitor General, N. section Bindra, R. H. Dhebar and B. R. G. K. Achar, for the appellant. M. C. Setalvad, B. C. Dutt, Santosh Chatterjee, B. Partha sarathy, 0. C. Mathur, and Ravinder Narain, for respondent No. 1. B. C. Dutt, Santosh Chatterjee, Anand Prakash, 0. C. Mathur and Ravinder Narain, for respondent No. 2. The Judgment of the Court was delivered by Subba Rao, C. J. This appeal by certificate raises the question of the constitutional validity of the Metal Corporation of India ,(Acquisition of Undertaking) Act (No. XLIV of 1965), hereinafter called the Act. The relevant facts lie in a small compass. The 1st respondent, The Metal Corporation of India Limited, hereinafter called the ,Corporation, was a limited company constituted under the Indian Companies Act, having for its objects, inter alia, the development of zinc and lead mines at Zawar in the State of Rajasthan and the construction of a zinc smelter and other connected works for producing electrolytic zinc and by products. The Government was ,satisfied that it was necessary to acquire the said Corporation in public interest and on October 22, 1965, the President of India 257 promulgated an Ordinance (No. 6 of 1965) providing for the acquisition of the Corporation by the Central Government. Pursuant to the said Ordinance, on or about October 23, 1965, the Central Government took over the possession, control and administration of the said Corporation. The Corporation, the 1st respondent and its Managing Director, the 2nd respondent filed a Writ Petition under article 226 of the Constitution in the High Court of Judicature for the State of Punjab, Circuit Bench at New Delhi, being Petition No. 631 D of 1965, challenging the validity of the said Ordinance. In the meantime, the Parliament passed the Act on the same terms as contained in Ordinance No. 6 of 1965: it received the assent of the President of India on December 12, 1965. The respondent filed another writ petition in the said High Court, being Writ Petition No. 832 D of 1965, for a declaration that the Act was ultra vires the Constitution. The said High Court held that the Ordinance and the Act contravened the relevant provisions of article 31 of the Constitution and, therefore, were constitutionally void. The present appeal is preferred against the said judgment of the High Court. It will be convenient at this stage to read the relevant provisions of the Act. The preamble and the relevant provisions of the Act read: "Preamble. An Act to provide for the acquisition of the undertaking of the Metal Corporation of India Limited for the purpose of enabling the Central Government in the public interest to exploit, to the fullest extent possible, zinc and lead deposits in and around the Zawar area in the State of Rajasthan and to utilise those minerals in such manner as to subserve the common good Section 3. On the commencement of this Act, the undertaking of the company shall, by virtue of this Act, be transferred to, and vest in, the Central Government. Section 10. (1) The Central Government shall pay compensation to the company for the acquisition of the undertaking of the company and such compensation shall be determined in accordance with the principles specified in the Schedule and in the manner hereinafter set out, that is to say, (2) Notwithstanding that separate valuations are calculated under the principles specified in the Schedule in respect of the several matters referred to therein, the 258 amount of compensation to be given shall be deemed to be a single compensation to be given for the undertaking as a whole. (3) THE SCHEDULE Principles for determining compensation for acquisition of the undertaking. Paragraph I. The compensation to be paid by the Central Government to the company in respect of the acquisition of the undertaking thereof shall be an amount equal to the sum total of the value of the properties and assets of the company on the date of commencement of this Act calculated in accordance with the provisions of paragraph II less the sum total of the liabilities and obligations of the company as on the said date calculated in accordance with the provisions of paragraph 111. Paragraph II. (a) The market value of any land or buildings; (b) the actual cost incurred by the company in acquiring any plant, machinery or other equipment which has not been worked or used and is in good condition and the written down value (determined in accordance with the provisions of the Income tax Act, 1961 (XLIII of 1961), of any other plant, machinery or equipment; (c) the market value of any shares, securities or other investments held by the company; (d) the total amount of the premium paid by the company in respect of all leasehold properties reduced in the case of each such premium by an amount which bears to such premium the same proportion as the expired term of the lease in respect of which such premium shall have been paid bears to the total term of the lease; (e) the amount of debts due to the company, whether secured or unsecured, to the extent to which they are reasonably considered to be recoverable. (f) the amount of cash held by the company, whether in deposit with a bank or otherwise; (g) the value of all tangible assets and properties other than those failing within any of the preceding clauses. Paragraph III. The total amount of liabilities and obligations incurred by the company in connection with 259 the formation, management and administration of the undertaking and subsisting immediately before the commencement of this Act. " The gist of the said provisions may be given thus. The Act was made to acquire in public interest the undertaking of the Corporation, On the commencement of the Act, the undertaking was transferred and vested in the Central Government. Under section 10 of the Act, the Government shall pay compensation to the undertaking as a whole: but, in the absence of an agreement between the Government and the Corporation, the compensation payable to the Corporation has to be ascertained under the principles specified in the Schedule in respect of the several matters referred to therein. Paragraph 1 of the Schedule lays down the manner in which the compensation to be paid to the Corporation for the acquisition of the undertaking is to be ascertained. The said compensation shall be an amount equal to the sum total of the value of the properties and assets of the Corporation on the date of the commencement of the Act calculated in accordance with the provisions of paragraph It less the liabilities on the said date calculated in accordance with the provisions of paragraph III of the Schedule. Broadly, the said paragraph lays down the principles for ascertaining the value of lands, buildings, machinery and equipment, amounts due to the undertaking and other tangible assets and properties. The different clauses of the paragraph adopt different principles for valuation. But what is important for the present purpose is the principle embodied in cl. (b) of para II. It is in two parts: the first provides for the valuation of plant, machinery or other equipment which has not been worked or used and is in good condition, and the second provides for the valuation of any other plant, machinery or equipment. The former has to be valued at the actual cost incurred by the Corporation in acquiring the same and the latter at the writtendown value determined in accordance with the provisions of the Indian Income tax Act, 1961. The High Court held, on a construction of the said provisions, that the principle contained in cl. (b) of paragraph 11 of the Schedule to the Act in respect of machinery etc. "cannot be called relevant to the determination of 'just equivalent ', as it takes no notice of the notorious fact that prices have been steadily rising during the past several years, particularly of imported machinery and plant". It also held, "that depreciation rule does not even pretend to determine the actual depreciation in a particular case and it is obvious that such depreciation has no real relationship with the actual value of any machinery at any particular point of time". On that reasoning, it came to the conclusion, having regard to the decision of this Court in Vajravelu vs Special Deputy Collector(1) that the said provision in respect of machinery did. (1) ; 260 not lay down a principle for fixing compensation i. e., a just equivalent to the machinery acquired. The reasoning of the High Court was attacked by the learned Additional Solicitor General on the ground that it did not appreciate the true scope of the said decision of this Court and that, in any view, it went wrong in applying the principle of the said decision to the provisions of the Act. He contended that the Act laid down the broad principle that compensation shall be paid for the entire undertaking as a unit, but provided different modes for the ascertainment of the value of different parts thereof in such a way that the deficiency in the valuation of one part was offset by the liberal valuation of the other part. In that view, he contended, the Act embodied a principle relevant to the ascertainment of compensation for the undertaking acquired and, therefore, the product worked out under the said principle pertained only to the realm ,of adequacy which was beyond the ken of judicial review. He added that compensation in article 31 of the Constitution meant that cornpensation which was regarded as just in the context of public acquisitions and that test was satisfied in the present case. Mr. M. C. Setalvad, learned counsel for the respondents, contended that though under the Act compensation was to be given to the undertaking as one unit, the Act laid down principles for arriving at the valuation of the parts to arrive at the valuation of the whole and that, therefore, every such principle should stand the test laid down by this Court. So judged, the argument proceeded, both the principles laid down in cl. (b) of para 11 of the Schedule had no nexus to the ascertainment of compensation for the machinery acquired, for in the case of unused machinery, its cost price was the guide and in the case of used machinery its written down value was the criterion and that both the methods were arbitrary. We find it difficult to appreciate the arguments of the learned Solicitor General. It is true that under section 10 of the Act the Central ,Government shall pay compensation for the acquisition of the undertaking to the Corporation and the said compensation arrived at in the manner prescribed in the Schedule to the Act shall be ,deemed to be a single compensation to be given to the undertaking as a whole. But it will be noticed that though a single compensation for the undertaking is given, the said compensation shall be deter mined in accordance with the principles specified in the Schedule. Under the Schedule, the compensation for the entire undertaking shall be the amount equal to the sum total of the value of the properties and assets of the Corporation calculated in accordance with the provisions of para II of the Schedule. Under the said para 11, different principles are laid down for ascertaining the value of different parts of the undertaking. If all the said principles laid ,down in para 11 of the Schedule do not provide for the just equivalent 261 of all the parts of the undertaking mentioned therein, the sum total also cannot obviously be a just equivalent of the undertaking. So too, if some of them do not provide for a just equivalent and others do so, the sum total cannot equally be a just equivalent to the undertaking. In the case of the undertaking in question, the machinery is the most valuable part of the undertaking. Apropos the unused machinery in good condition, how can the price for which the said machinery was purchased years ago possibly represent its price at the time of its acquisition? A simple illustration will disclose the irrelevance of the principle. Suppose in 1950 a machinery was purchased for Rs. 100 and, for some reasons, the same has not been used in the working of the undertaking but has been maintained in good condition. That machinery has not become obsolescent and still can be used effectively. If purchased in open market it will cost the owner Rs. 1,000. A compensation of Rs. 100 for that machinery cannot be said to be a just equivalent of it. It is common knowledge that there has been an upward spiral in prices of the machinery in recent years. The cost price of a machinery purchased about ten years ago is a consideration not relevant for fixing compensation for its acquisition in 1965. The principle must be such as to enable the ascertainment of its price at or about the time of its acquisition. Nor the doctrine of written down value accepted in the Income tax law can afford any guide for ascertaining the compensation for the used machinery acquired under the Act. Under the general scheme of the Income tax Act, the income is to be charged regardless of the diminution in the value of the capital. But the rigor of this hard principle is mitigated by the Act granting allowances in respect of depreciation in the value of certain assets such as machinery, buildings, plant, furniture etc. These allowances are worked out on a notional basis for giving relief to the income tax assessee. This artificial rule of depreciation evolved for income tax purposes has no relation to the value of the said assets. To illustrate: a machinery was purchased in the year 1950 for Rs. 1,000. The aggregate of all the depreciation allowances made year after year for ten years may exhaust the sum of Rs. 1,000 with the result, after the tenth year, the assessee will not be entitled to any depreciation. From this it cannot be said that after the tenth year the machinery has no value. Indeed, a machinery purchased for Rs, 1,000 in 1950, because of subsequent rise in. prices may be sold in 1965 for Rs. 10,000. But the application of the principle laid down in cl. (b) of para 11 of the Schedule to the Act in regard to used machinery gives the owner no compensation at all. Yet, the Government takes the machinery worth Rs. 10,000 gratis. This illustration exposes the extreme arbitrariness of the principle. It is, therefore, manifest that the two principles of valuation embodied in cl. (b) of para II of the Schedule to the Act are not relevant to the fixing of compensation for the machinery at. the time of its acquisition under the Act. The argument, of the 262 learned Additional Solicitor General that the working out of all the principles in respect of different parts of the undertaking would result in a product which would fairly represent, in the context of public acquisitions, the "just equivalent" to the undertaking acquired is purely based on a surmise for, it is not shown that the working out of any one or more of the principles would give a higher compensation to some parts of the undertaking so that the excess paid under one head would offset the deficiency under another head. Nor can the doctrine of inherent worth of a machinery has any relevance in the matter of giving compensation for its acquisition at a particular point of time, for the simple reason that the worth of an article depends upon the market conditions obtaining at the time of its acquisition. It is impossible to predicate, irrespective of such conditions, that a particular machinery has a fixed value. for all times. Four decisions of this Court laid down the principles applicable to the present case. Indeed, but for the said decisions, we would have posted this case before a Constitution Bench of five Judges. But, as this appeal involves only the application of the construction put upon article 31 of the Constitution by this Court in the said decisions, we did not resort to that course. The first of them is The State of West Bengal vs Mrs. Bela Banerjee (1). There, the validity of the West Bengal Land Development and Planning Act, 1948 was under scrutiny. Section 8 thereof provided that compensation to be awarded for compulsory acquisition to owners of land was not to exceed the market value as on December 31, 1946. This Court held that the said Act was ultra vires the Constitution and void under article 32(2) thereof. In that context, Patanjali Sastri, C.J., observed: "Turning now to the provisions relating to compensation under the impugned Act, it will be seen that the latter part of the proviso to section 8 limits the amount of compensation so as not to exceed the market value of the land on December 31, 1946, no matter when the land is acquired. Considering that the impugned Act is a permanent enactment and lands may be acquired under it many years after it came into force, the fixing of the market value on December 31, 1946, as the ceiling on compensation, without reference. to the value of the land at the time of the acquisition is arbitrary and cannot be regarded as due compliance in letter and spirit with the requirement of article 31(2). " The above decision was followed by this Court in State of Madras vs D. Namasivaya Mudaliar(2). There the respondents were owners of certain lands which were to be compulsorily acquired under (1) ; , 564. (2) ; , 945 2 63 Madras Lignite (Acquisition of Land) Act, 1953. The Act came into force on August 20, 1953, before article 31 of the Constitution was amended by the Constitution (Fourth Amendment) Act, 1955. By the said Act compensation for the acquisition of lignite bearing bands under the Land Acquisition Act was to be assessed on the market value of the land prevailing on August 28, 1947, and not on he date on which the notification was issued under section 4(1) of the and Acquisition Act. It also provided that in awarding compensation, the value of non agricultural improvements commenced since April 28, 1.947 would not be taken into consideration. This Court held that the said Act was bad, because it contravened article 31(2) of the Constitution, as it stood before the Constitution (Fourth Amendment) Act, 1955. This Court, speaking through Shah, J., observed: "Assuming that in appropriate cases, fixation of a date anterior to the publication of the notification under section 4(1) for ascertainment of market value of the land to be acquired, may not always be regarded as a violation of the constitutional guarantee, in the absence of evidence that compensation assessed on the basis of market value on such anterior date, awards to the expropriated owner a just monetary value of his property at the date on which his interest is extinguished, the provisions of the Act arbitrarily fixing compensation based on the market value at a date many years before the notification under section 4(1) was issued, cannot be regarded as valid." Then the learned Judge proceeded to state: "To deny to the owner of the land compensation at rates which justly indemnify him for his loss by awarding him compensation at rates prevailing ten years before the date on which the notification under section 4(1) was issued amounts in the circumstances to a flagrant infringement of the fundamental right of the owner of the land under article 31(2) as it stood when the Act was enacted. " These two decisions turned upon the construction of article 31(2) of the Constitution before the Constitution (Fourth Amendment) Act, 1955. These cases laid down two propositions: (1) "Compensation" under article 31(2) of the Constitution means a "just equivalent" of what the owner has been deprived of ; and (2) the value of land at an anterior date is presumed to be no compensation within the meaning of the said Article. After the Constitution (Fourth Amendment) Act, 1955, this Court had to construe in two decisions he amended provision of article 31(2) vis a vis the expression "compensation" found therein. The first decision is that in Vajravelu 264 vs Special Deputy Collector(1). There, this Court observed at p. 625 626: "A scrutiny of the amended Article discloses that it accepted the meaning of the expressions "compensation" and "principles" as defined by this Court in Mrs. Bela Banerjee 's case(2)." .lm0 And it held that, if the compensation is illusory or if the principles prescribed are irrelevant to the value of the property at or about the time of its acquisition, it can be said that the Legislature committed a fraud on power and, therefore, the law is bad. One of the illustrations given at p. 627 is relevant to the present enquiry and that is as follows : if a law lays down principles which are not relevant ' to the property acquired or to the value of the property at or about the time it is acquired, it may be said that they are not principles contemplated by article 31(2) of the Constitution. If a law says. . that though it (house) is acquired in 1960 its value in 1930 should be given. . the principles do not pertain to the domain of adequacy but are principles unconnected to the value of the property acquired. " Applying these principles, this Court in Jeejeebhoy vs Assistant Collector(3), held that the fixation of an anterior date for the ascertainment of the value of the property acquired without reference to any relevant considerations which necessitated the fixing of an earlier date for the purpose of ascertaining the real value is arbitrary. On that ground this Court held that the Land Acquisition (Bombay Amendment) Act, 1948, did not provide for payment of just equivalent of what the owner was deprived of, as it provided for the ascertainment of compensation on the basis of the value of lands acquired as on January 1, 1948 and not as on the date on which the section 4 notification under the 1894 Act was issued. The relevant aspect of the legal position evolved by the said decisions may be stated thus: Under article 31(2) of the Constitution, no property shall be compulsorily acquired except under a law which provides for compensation for the property acquired and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given. The second limb of the provision says that no such law shall be called in question in any court on the ground that the compensation provided by the law is not adequate. If the two concepts, namely, "compensation" and the jurisdiction of the court are kept apart, the meaning of the provisions is clear. The law to (1)[1965] 1 S.C.R. 614. (2) ; (3) 6. 265 justify itself has to provide for the payment of a "just equivalent" to the land acquired or lay down principles which will lead to that result. If the principles laid down are relevant to the fixation of compensation and are not arbitrary, the adequacy of the resultant product cannot be questioned in a court of law. The validity of the principles, judged by the above tests, falls within judicial scrutiny, and if they stand the tests, the adequacy of the product falls outside its jurisdiction. Judged by the said tests, it is manifest that the two principles laid down in cl. (b) of Para 11 of the Schedule to the Act, namely, (i) compensation equated to the cost price in the case of unused machinery in good condition, and (ii) written down value as understood in the Income tax law as the value of used machinery, are irrelevant to the fixation of the value of the said machinery as on the date of acquisition. It follows that the impugned Act has not provided for "compensation" within the meaning of article 31(2) of the Constitution and, therefore, it is void. The mere fact that in regard to some parts of the undertakings the principles provide for compensation does not affect the real question, for, machinery is the major part of the undertaking and,, as the entire undertaking is acquired as a unit, the constitutional invalidity of cl. (b) of Para 11 of the Schedule to the Act affects the totality of the compensation payable to the entire undertaking. In the context of compensation for the entire undertaking, the clauses of Para 11 of the Schedule to the Act are not severable. In the result, the Act, not having provided for compensation, is unconstitutional and the conclusion arrived at by the High Court is, correct. appeal fails and is dismissed with costs. V.P.S. Appeal dismissed.

The fundamental idea underlying the words used in the definition of "business" in section 2(4) of the Income tax Act the continuous exercise of an activity and the same central idea is implicit in the words "carried on by him" occurring in 10(1) and those critical words are an essential constituent that which is to be produce the taxable income, and therefore the 768 tax is payable only in respect of the profits or gains of the business which is carried on by the assessee. That under clause (vii) of section 10(2) the machinery and plant must be such as were used at least for a part of the accounting year. As the machinery and plant of the sugar factory which were sold had not at all been used for the purpose of business during the accounting year, the second proviso to s.10. (2) (vii) could have no application and the assessees were not liable. Although the High Court will not disturb or go behind a finding of fact of the Tribunal, it is well settled that where it is competent for a Tribunal to make findings of fact which are excluded from review, the appeal court has always jurisdiction to intervene if it appears either that the Tribunal has misunderstood the statutory language because the proper construction of the statutory language is a matter of law or that the Tribunal has made a finding for which there is no evidence or which is inconsistent with the evidence and contradictory of it. Commissioner of Income tax vs Shaw Wallace and Company (L.R. 59 I.A. 206), and Commissioners o/Inland Revenue vs Fraser (24 Tax Cases 498) referred to.

Civil Appeal No. 4 (NCE) of 1987. From the Judgment and order dated 2.12.1986 of the High Court of Gauhati in Election Petition No. 2 of 1986. Govind Mukhoty, Anil Nauriya and Mrs. Rekha Pandey for the Appellant. Miss Halida Khatoon, Abdul Sattar and R.C. Kaushik for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal is filed by the appellant Dewan Joynal Abedin against the judgment dated December 2, 1986 of the High Court at Gauhati setting aside his election to the Legislative Assembly of Assam at the election held on the 16th December, 1985 from the 22 Salmara South Legislative Assembly Constituency on an election petition filed by respondent No. 1 Abdul Wazed alias Abdul Wazed Miah in Election Petition No. 2 of 1986. The last date for making nominations for election from the aforesaid constituency was 22nd November, 1985 and the date for the scrutiny of nominations was November 23, 1985. The appellant, the Ist respondent and the second respondent Bazlul Basit were the three candidates on whose behalf nomination papers had been filed before the expiry of the time fixed for making nominations. Respondent No. 3, M. Bhattacharjee, was the Returning officer. At the time of the scrutirly respondent No. 2 raised objection to the nomination of respondent No. 1 on the ground that respondent No. 1 had not comp 374 leted 25 years of age on the date of scrutiny as required by Article 173(b) of the Constitution which provided that a person was not qualified to be chosen to fill a seat in the Legislature of a State unless he was in the case of a seat in the Legislative Assembly not less than twenty five years of age and in the case of seat in the Legislative Council not less than thirty years of age. The proposer of one of the nomination papers filed on behalf of the respondent No. 1 prayed for some time to refute the objection. The Returning officer, however, proceeded to reject the nomination papers filed on behalf of the Ist respondent on 23.11.1985 holding that the Ist respondent had not completed 25 years of age and therefore was not qualified to be a member of the Legislative Assembly. The election process continued with only the appellant and the second respondent as the candidates and after the poll the appellant was declared as having been elected on the basis of the larger number of votes secured by him. Thereupon the Ist respondent filed the election petition before the High Court out of which this appeal arises contending that he had infact completed 25 years of age on the date of his nomination and that the rejection of his nomination papers was erroneous. The Ist respondent further contended that on account of the rejection of his nomination papers the election of the appellant was liable to be set aside under section 100(1)(c) of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act ') which provided that the election of a successful candidate was liable to be set aside on the ground that any nomination had been improperly rejected. In the course of his written statement the appellant raised several pleas, and of them three were material for purposes of this case. First he pleaded that the Ist respondent had not completed 25 years of age on the date of scrutiny of nominations and therefore the nomination papers had been rightly rejected, secondly he pleaded that the Ist respondent had not subscribed an oath as required by Article 173(a) of the Constitution and therefore the Ist respondent was not qualified to contest the election and thirdly he pleaded that the Ist respondent was also disqualified to be chosen to fill a seat in the Legislature of the State as on the date of scrutiny of the nominations the Ist respondent had a subsisting contract entered into by him with the Government on Assam under which he had been treated as a lessee of the Phulbari Ghat Ferry for the period between 1.4.1985 and 31.3.1986. The Ist respondent pleaded that he had completed the age of twenty five years on the date of scrutiny of nomination that he had subscribed an oath as required by Article 173(a) of the Constitution and that while it was true that he had entered into such a contract he had been released from the said contract on 21.11.1985 by the Executive Engineer concerned and therefore there was no subsisting 375 contract between him and the Government of Assam on the date of A scrutiny. On the basis of these pleas Issue No. S and Issue No. 6 were framed by the High Court which read as follows: 5. Whether the nomination paper of the petitioner has been improperly rejected? If so, whether the election of the respondent is void? or, Whether the nomination paper of the petitioner was liable to be rejected as alleged in para 7 of the written statement? 6. Whether the petitioner had incurred disqualification under section 9A of the Representation of the People Act? After recording the evidence produced by the parties the learned Judge of the High Court who tried the election petition held that the Ist respondent had completed the age of 25 years on the date of scrutiny and therefore he had the necessary qualification for being a member of the Legislative Assembly. He accordingly held on the first part of issue No. S in favour of the Ist respondent. On the second part of issue No. S the learned Judge held that the appellant had not proved that the Ist Respondent had not subscribed on oath as required by law. On issue No. 6 the learned Judge held that the. Ist respondent had been relieved from the charge of Phulbari Ghat Ferry with effect from 21. 1985 and therefore there was no subsisting contract between the Ist respondent and the Government of Assam on the date of scrutiny of nominations and therefore the Ist respondent was not disqualified under section 9 A of the act. In view of his findings recorded on Issues Nos. 5 and 6 the learned Judge came to the conclusion that the rejection of the nomination papers filed on behalf of the Ist respondent was improper and therefore the election was liable to be set aside. He accordingly set aside the election of the appellant. Aggrieved by the judgment of the learned Judge the appellant has filed this appeal under section 116 A of the Act. When this appeal was taken up for hearing on the first date it was noticed that the High Court had not considered the question whether section 9 A of the Act was attracted at all to the contract in question as it appeared to be not one of those contracts which had the effect of disqualifying a candidate under section 9 A of the Act. The case thereafter was adjourned to a subsequent date for hearing to enable the learned counsel to make their submissions on the above question also. By the next date of hearing the appellant filed a petition before the 376 Court seeking an amendment of the written statement raising the plea that the Ist respondent was also disqualified from contesting the election as he held an office of profit under the State Government by virtue of the contract that had been entered into by him with the State Government even though the contract in question may not be one of those contracts specified in section 9 A of the Act. In other words it was contended that the Ist respondent was disqualified under Article 191(1)(a) of the Constitution which provided that a person would be disqualified for being chosen as, and for being, a member of the Legislative Assembly of a State if he held any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder. It is necessary to refer to one aspect of the case. Although before the High Court it was urged by the appellant that the Ist respondent had not subscribed on oath in compliance with the provisions of Article 173 of the Constitution and thus he was not eligible to contest the t) election and that the High Court had negatived the said contention, no arguments were addressed before us by the learned counsel for the appellant questioning the finding of the High Court on the above question. We do not, therefore, find it necessary to discuss the evidence relating to the above issue. Three questions arise for consideration in this appeal: (i) whether the 1st respondent had not completed the age of 25 years on the last date for filing nomination?; (ii) whether the contract in question said to have been entered into by the Ist respondent with the Government of Assam to collect the toll at the ferry was a contract for the execution of any works undertaken by the Government of Assam attracting section 9 A of the Act and if so whether the said contract was subsisting on the date of scrutiny of nomination?; and (iii) whether the Ist respondent held an office of profit under the Government of Assam by virtue of being a lessee of the right to collect the toll at the ferry? on the question of the age of the Ist respondent there is practically no evidence adduced on behalf of the appellant. The Electoral Roll, which was marked as Exhibit 7, in the case showed that the Ist respondent was aged 29 years. In support of his case 7 the Ist respondent had examined three witnesses, P.W. 2 Aripulla, P.W. 3 Sirajul Islam and P.W. 6 Habibar Rahman. He also produced his High School Leaving Certificate (Exhibit 12) which showed that he was above 25 377 years on the date of the nomination. The High Court has summed up its conclusion of the above question at paragraph 14 of its judgment thus: "14. As already held that the High School leaving Certificate (Ext 12) and admission register cannot be rejected. The oral evidence of the witnesses relating to the age has not been shaken in the cross examination. As regards age, the relatives are best witnesses. Considering the High School Leaving Certificate (Ext 12) Electoral Roll (Ext 7) and oral evidence of PW 2 Aripulla, PW 3 Silajul Islam and PW 6 Habibar Rahman, it is concluded on the age of the petitioner on the date for making nomination or scrutiny of nomination that he had completed the age of 25 years. We have gone through the evidence bearing on the above question. We are of the view that the High Court was right in upholding that the Ist respondent was more than 25 years of age on the date of scrutiny and he was eligible to be a member of the Legislative Assembly. Thus the ground on which the Returning officer had rejected his nomination papers is untenable. This takes us to the next question, namely, whether the Ist respondent was disqualified for being chosen as a member of the Legislative Assembly on account of the contract entered into by him in the course of his trade or business with the Government of Assam subsisting on the date of scrutiny of nominations as provided by section 9 A of the Act. Section 9 A of the Act reads thus: "9 A. Disqualification for Government contracts, etc. A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by that Government. " There is a public ferry at Phulbari ghat, which is under the control of the Executive Engineer, Public Works department, Goalpara (Roads) Division. It is admitted by the Ist respondent that he was the lessee of the tolls of the said public ferry for the period between 1.4.1985 and 31.3.1986 but his case, however, was that he had been relieved from the said contract on 21.11. But the appellant 378 pleaded in the course of his written statement that only on 25. l 1.1985, that is on the date of scrutiny of the nomination papers, the Executive Engineer had at the request of the appellant, allegedly made on 18.11.1985 released the petitioner from the contract and that the order of release had been made after the scrutiny was over. The High Court had, therefore, to consider the question whether the order of release had been made on the 21.11.1985 or on 25.11.1985 after the scrutiny of nomination papers. On a consideration of the evidence led by the parties, the High Court held that the Ist respondent had been relieved of the charge of the ferry on 21. 11.1985 and that he was not disqualified under section 9 A of the Act. As stated earlier when the matter was argued before us on the first date of hearing the learned counsel for the parties were asked to make their submission on the question whether a lease of the ferry tolls attracted the provisions of section 9 A of the Act and the learned counsel have made their submissions in that behalf. The management of a public ferry is governed by the provisions of the Northern India Ferries Act, 1878 (hereinafter referred to as 'the Ferries Act ') which has been extended to the State of Assam. section 8 of the Ferris Act reads thus: "8. Letting ferry tolls by auction The tolls of any public ferry may, from time to time, be let by public auction for a term not exceeding five years with the approval of the Commissioner, or by public auction, or otherwise than by public auction, for any term with the previous sanction of the State Government. The lessee shall conform to the rules made under this Act for the management and control of the ferry, and may be called upon by the officer in whom the immediate superintendence of the ferry is vested, or, if the ferry is managed by a municipal or other public body under section 7 or section 7 A, then by that body, to give such security for his good conduct and for the punctual payment of the rent as the officer or body, as the case may be. thinks fit. When the tolls are put up to public auction, the said officer or body, as the case may be, or the officer conducting the sale on his or its behalf may, for reasons recorded in writing, refuse to accept the offer of the highest bidder, and may accept any other bid, or may withdraw the tolls from auction. 379 Section 9 of the Ferries Act provides for the recovery of arrears from the lessee. Section 10 of the Ferries Act provides for the cancellation of the lease by the Government. Section 11 of the Ferries Act provides for the surrender of the lease by the lessee. Section 12 of the Ferries Act makes provision for the promulgation of rules which inter alia may provide for the control and the management of all public ferries within a division and for regulating the traffic at such ferries; for regulating the time and manner at and in which, and the terms on which, the tolls of such ferries may be let by auction, and prescribing the persons by whom auctions may be conducted and when the tolls of a ferry have been let under section 8 of the Ferries Act for collecting the rents payable for the tolls of such ferries. Section 13 of the Ferries Act prohibits plying of any ferry within two miles of a public ferry without sanction from the appropriate authority. Section 14 of the Ferries Act provides that whoever uses the approach to, or landing place of, a public ferry is liable to pay the tool payable for crossing such ferry. Under section 15 of the Ferries Act provision is made for fixing the rates of tolls. It says that the tolls, according to such rates as are, from time to time, fixed by the State Government? shall be levied on all persons, animals, vehicles and other things crossing any river by a public ferry and not employed or transmitted on the public service. The State Government is, however, given power to declare that any persons, animals vehicles or other things shall be exempt from payment of such tolls. Where tolls of a ferry have been let under section 8 of the Ferries Act any such declaration, if made after the date of the lease, shall entitle the lessee to such abatement of the rent payable in respect of the tolls as may be fixed by the Commissioner of the Division or such other officer as the State Government may, from time to time, appoint in this behalf by name or in virtue of his office. The Rules have been framed by the Chief Engineer, Assam under section 12 of the Ferries Act for purposes of the control and management of and for regulating the traffic at all Government ferries. Under the said Rules, for Government ferries suitable ferry boats, engines or mars are supplied at the expense of the Public Works Department. The lessee shall be responsible as a bailee for these boats, engines and mars and he shall, on the expiry or earlier termination of his lease, return them to the Executive Engineer in good condition, allowance being made for fair wear and tear. The lessee who acquires the right to collect toll is bound to cross over on tender of payment in cash of the authorised toll or on production of a season ticket or pass, all persons desiring to cross within the hours for which the ferry according to the terms of the lease is open. He is precluded from carrying persons whom he may know or suspect to be fugitives from justice or to be bent upon an unlawful 380 purpose. He cannot carry over at any one time in his ferry boat or mar more than the number of persons, animals, vehicles or other things specified in his lease as permitted to be so ferried. He has to provide a shed 15 feet long by 15 feet broad, on each side of the ferry for the temporary accommodation of persons wishing to cross. The lessee has to furnish monthly a return in the prescribed form supplied to him by the Executive Engineer giving particulars which are required to be furnished through it. The approach roads to all Government ferries and low level bridges are constructed and maintained by the Public Works Department The lessee is responsible for conveying immediate information of damage to approaches to the concerned authorities. The Public Works Department has to provide sufficient means for embarking and disembarking all persons, animals, vehicles and things which a lessee is bound to cross over at his ferry with the exception of ropes and tying posts for securing the mar. All Government ferries shall generally be let by public auction; provided that, for special reasons to be recorded in writing, the Executive Engineer or Sub Divisional officer, Public Works Department, may reserve any ferry from lease and may work it direct. Collection of tolls by departmental agency will only be resorted to when absolutely unavoidable. The auction sale of the right to carry passengers at the ferry is held by the Deputy Commissioner/Civil Sub Divisional officer or some officer deputed by him for the purpose. The person whose bid is accepted has to pay the purchase money in accordance with the Rules. If there is any default on the part of the lessee in paying the amount payable by him, the lease is liable to be cancelled. These are broadly the features of the contract between a lessee of a ferry and the Government. The question for consideration is whether a person who takes on lease a ferry under section 8 of the Ferries Act becomes disqualified for contesting the election to the State Legislature under section 9 A of the Act. At this stage it is necessary to set out the history of the provisions contained in section 9 A of the Act. When the Act was enacted originally there was section 7 of the Act the relevant part of which reads as follows: "7. A person shall be disqualified for being chosen as and for being a member of the either House of Parliament or of the Legislative Assembly or Legislative Council of a State . . . . . . . . (d) If, whether by himself or by any person or body of persons in trust for him or for his benefit or on his 381 account he has any share or interest in a contract for the supply of goods to, or for the execution of any works or the performance of any services undertaken by the appropriate Government . " In 1958 this provision was amended. In the Statement of objects and Reasons of the Representation of the People (Amendment) Bill, 1958. which was enacted as the Representation of the People (Amendment) Act, 1958 it was stated as follows: "The language of section 7(d) of the 1951 Act which provides for disqualification in case of contracts with the Government is wide and vague enough to bring any kind or category of contract within its scope and it has been a fruitful source of election disputes in the past. Persons who only occasionally broadcast any talk from the radio station or contribute article to any Government publication may come within the mischief of this section. " The Bill was referred to a Select Committee of Parliament. The said Select Committee reported on December 15, 1958 with regard to the proposed redrafting of Section 7(d). The Select Committee suggested as follows: "The Committee have carefully considered the proposed substituted clause (d) of section 7 of the Representation of the People Act, 1951. The Committee feel that in view of the expanding activities of the Central and State Governments as the biggest purchasers and suppliers of goods including food grains and other essential commodities, a large number of persons in the country will have some contractual relationship with the Governments in these matters. Under the circumstances it will not be proper to disqualify all such persons who are having contractual dealings with the Governments from standing for election or being elected as members of Parliament or State Legislatures. The Committee, therefore feel that the better course would be altogether to omit the existing clause (d) of section 7 of the Act. " This suggestion was not, of course accepted. After the amendment in 1958 section 7(d) of the Act read thus: H 382 "7. A person shall be disqualified for being chosen as, and for being a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State . . . . . . . . . (d) If there subsists a contract entered into in the course of his trade or business by him with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by that Government. " By the Representation of the People (Amendment) Act, 1966 some of the provisions of the Representation of the People Act were amended. On that occasion sections 7, 8, 9 and some other provisions of the Act, which provided for the disqualification of persons for being chosen as members of Parliament or of the State Legislature were substituted by new sections 7, 8, 8A, 9, 9A, 10 etc. The present section 9 A was enacted in the place of the former section 7(d). Section 9 A of the Act was enacted in the same pattern in which section 7(d), stood after the amendment in 1958. An explanation was, however, added to it which provided that only by reason of the fact that the Government had not performed its part of the contract either wholly or in part, it could not be said that the contract which attracted section 9 A was subsisting where a contract had been fully performed by the person by whom it had been entered into with the appropriate Government. An analysis of section 9 A of the Act shows that only in two cases a person would be disqualified if he has entered into a contract with the appropriate Government in the course of his trade or business which is subsisting on the date of scrutiny of nomination. They are (i) when the contract is one for supply of goods to the appropriate Government and (ii) where the contract is for the execution of any works undertaken by that Government. If a contract belonging to either of the two categories is subsisting on the date of the nomination, the person will be disqualified for being chosen as a member. In the present case the contract is not one for supply of goods to the Government. It does not, therefore, fall under the first class of contracts which create the disqualification. The question for determination is whether the contract to collect toll at a Government ferry entered into in accordance with the Ferries Act amounts to a contract for the execution of any works undertaken by the Government. At this stage we should remember that the words 'or the performance of any services ' 383 were omitted from section 7(d) by the amendment made in the year 1958. In N. Satyanathan vs K. Subramanyan and others; , this Court had occasion to construe section 7(d) of the Act before its amendment in 1958. In that case the appellant was a contractor who had entered into an agreement with the Central Government whereby he had contracted with the Governor General for the provision of a Motor Vehicle Service for the conveyance of postal articles and mail bags. Under the contract the Governor General had agreed to pay to the contractor 200 per month during the subsistence of the agreement as his remuneration for service to be rendered by him. The appellant therein was held to be disqualified under section 7(d) of the Act, as it stood then, as he had undertaken to carry out a service which the Government had undertaken to do. The Court said that "it cannot be gainsaid that the Government in the Postal Department is rendering a very useful service and that the appellant has by his contract with the Government undertaken to render that kind of service on a specified route. The present case is a straightforward illustration of the kind of contract contemplated by section 7(d) of the Act. " The Court took the above view in view of the presence of words 'the performance of any service ' under section 7(d) of the Act, as it stood then. Those words were omitted from section 7(d) on its amendment in the year 1958 and section 9 A of the Act as it stands today also does not contain those words. In Ram Padarath Mahto vs Mishri Singh & Anr., [1961] 2 S .C . R. 470 a similar question arose for consideration . The appellant in that appeal was a member of a joint Hindu family which carried on the business of Government stockists of grain under a contract with the Government of Bihar. His nomination for election to the Bihar Legislative Assembly was rejected on the ground that he was disqualified under section 7(d) of the Act, as he had an interest in a contract for the performance of services undertaken by the Bihar Government. The appellant contended that the service undertaken by the Government was the sale of foodgrains under the Grain Supply Scheme and the contract was not for the sale of such foodgrains and did not attract the provisions of section 7(d) of the Act. This Court held that the contract was not one for the purpose of any service undertaken by the Government and the appellant therein was not disqualified under section 7(d) of the Act. The Court held that a contract of bailment which imposed on the bailee the obligation to stock and store the foodgrains in his godowns was not a contract for the purpose of the service of sale of grain which the Government had undertaken. The Government had undertaken the work of supplying grain but the contract was not one for the supply of grain. The Court distinguished the decision in N. Satyanathan vs K. Subramanyam, 384 (supra) while reaching the conclusion that the appellant was not disqualified for being chosen as a member of the Bihar Legislature. So even at a time prior to the amendment of section 7(d) of the Act in the year 1958 it was possible to take the view that certain types of contracts entered into with the appropriate Government, even though they were subsisting on the date of scrutiny of nomination did not disqualify a person from being chosen as a member of the State Legislature. It is pertinent to refer to the observation made by Gajendragadkar, J. in Ram Padarath Mahto 's case (supra) which runs as under: "It may sound technical, but in dealing with a statutory provision which imposes a disqualification on a citizen it would be unreasonable to take merely a broad and general view and ignore the essential points of distinction on the ground that they are technical. The narrow question is: if the State Government undertook the work of supplying the grain, is the contract one for the supply of grain?; In our opinion, the answer to this question must be in the negative; that is why we think the High Court did not correctly appreciate the effect of the contract when it held that the said contract brought the appellant s case within the mischief of section 7(d). " Unless the contract in question is one which clearly falls under section 9 A of the Act, it would not be proper to hold that the person who is a party to the contract is disqualified for being chosen as a member to the State Legislature. In B. Lakshmikantha Rao vs D. Chinna Mallaiah and others the question that arose for consideration was whether a person who was carrying on the business in arrach and toddy under a contract with the Government under the provisions of the Andhra Pradesh Excise Act, 1968 was disqualified for being chosen as a member of the Legislature. The facts of that case briefly stated were thus. There was an agreement between the highest bidder, i.e., the returned candidate and the Government in respect of the carrying on the business in arrack and toddy. A perusal of the relevant provisions i.e., sections 15 and 17 of the Andhra Pradesh Excise Act and rule 21 of the Rules framed under that Act as well as the agreements signed by the returned candidate, showed that the highest bidder had to deposit the monthly rentals and purchase the arrack from the Government at the issue price and sell the same to the public. If there were any arrears in the monthly rentals the same could be recovered as arrears of land revenue. Similarly with regard to the toddy shop he had to tap the toddy from the trees allotted to him by 385 the Government by paying the tree tax and sell the toddy to the public. For the toddy shop also he had to pay monthly rentals and if he fell in arrears the same could be recovered as arrears of land revenue. There were other incidental conditions in the agreements. The Andhra Pradesh High Court held that since the contracts entered into by the successful candidate with the State Government to sell arrack and toddy did not come within the mischief of section 9 A of the Act as they were neither for supply of goods to the Government nor for the execution of any works undertaken he did not suffer from any disqualification for being chosen as a member of the Legislative Assembly. We have gone through the above decision carefully. We are of the view that the High Court was right in the said case in holding that the returned candidate had not suffered from any disqualification by reason the fact that he was an excise contractor. In the present case the position of the Ist respondent is more or less similar to the position of the returned candidate in the decision of the Andhra Pradesh High Court. The Ist respondent had acquired in the public auction the right to collect the toll by paying the amount which he had offered to pay under the contract. He had not undertaken thereby any contract for execution of any works undertaken by the Government. The word 'works ' in the expression in 'execution of any works ' appearing in section 9 A of the Act is used in the sense of 'projects ', 'schemes ', 'plants ', such as building works, irrigation works, defence works etc. The Ist respondent in this case had not undertaken to carry on any such work. According to the Shorter oxford English Dictionary the expression 'work ' means a structure or apparatus of some kind; an architectural or engineering structure, a building edifice. When it is used in plural, i.e., as 'works ' it means 'architectural or engineering operations; a fortified building; a defensive structure, fortification; any of the several parts of such structure '. The word 'works ' used in Entry 35 of List II of the Seventh Schedule of the Constitution of India which reads as "works, lands and building vested in or in the possession of the State" is used in the same sense. The running of boats across inland waterways in a topic which falls under Entry 32 of List III of the Seventh Schedule which reads thus: "Shipping and navigation on inland waterways as regards mechanically propelled vessels, and the rule of the road on such waterways, and the carriage of passengers and goods on inland waterways subject to the provisions of List I with respect to national waterways. " It is, therefore, difficult to hold that when a person acquires the right to collect toll at a public ferry under section 8 of the Ferries Act he is performing a contract of execution of works undertaken by the Government. It 386 may have been perhaps different if the words 'in performance of any services ' which were present in section 7(d) of the Act, as it stood prior to its amendment in 1958 had been there is section 9 A of the Act. We do not find any substance in the argument urged on behalf of the appellant that because under Condition No. 10 of the form of lease prescribed under the Ferries Act the lessee is under an obligation during the period of lease to mark buoys or in any other suitable manner, all submerged obstruction or dangerous rocks in the rivers within half a mile of the landing ghats and shall be held responsible for any loss of damage caused to the marboats striking against such submerged obstructions or dangerous rocks it should be held that the Ist respondent had undertaken to execute works undertaken by the Government. The above condition only requires the lessee to mark buoys or in any other suitable manner the places where there were any submerged obstruction or dangerous rocks within half a mile of the landing ghats. Having regard to the conditions of the lease and the provisions of the Act and the Rules made thereunder we are clearly of the view that the activity undertaken by the lessee under the agreement cannot be considered as an agreement for execution of works undertaken by the State Government. We are, therefore, of the view that the contract which the Ist respondent had entered into with the State Government even though it was subsisting on the date of scrutiny of nominations would not have the effect of disqualifying him for being chosen as a member of the State Legislative Assembly since section 9 A of the Act is not at all attracted to such a case. The learned counsel for the appellant however tried to justify the rejection of the nomination papers of the Ist respondent on the ground that the appellant was holding an office of profit under the State Government when the contract to ply the boats at the ferry was subsisting. We find it difficult to agree with the learned counsel that under the contract in question the Ist respondent had been inducted into any office under the State Government. An 'office ' means a public or private employment with certain duties to be performed. The words 'office ' and 'officer ' are used sometimes in a wide sense and sometimes in a narrow sense. A lawyer is sometimes called an officer of the Court. But still he is not holding any office profit as such for purposes of the law of elections. A lessee of tolls under the Ferries Act is only a contractor who under the lease acquires the right to collect whatever toll is paid by persons who the ferry against payment to Government in 387 advance whatever amount he had agreed to pay at the time of auction. Whether he makes any profit in that business or not depends ultimately on the amount of toll he is able to realise during the whole period of lease. Such a contract is essentially in the nature of a business. It cannot be termed as an office in any sense. A transaction of lease under the Ferries Act is not a lease of an office. In State of Uttar Pradesh vs Satya Narain Prasad, ; this Court dealing with a case in which the question involved related to the termination of lease under section 10 of the Ferries Act has referred to the right of a lease as one having the character of a business in the following passage at page 200: "In construing section 10 of the Act it has to be borne in mind that it deals with the cancellation of a lease of tolls of a public ferry. In other words, once the notice in effective valuable rights of a lessee came to an end. This is recognised by the Legislature by providing a six month 's notice. This period is given so that he can wind up this particular business. " (underlining by us) It is urged that since the Ist respondent had the right to secure the services of the police whenever needed the Ist respondent should be deemed a person holding an office of profit. The right to requisition the services of the police again did not make the Ist respondent a person holding an office of profit. In fact for that matter anybody may complain to the police and seek their assistance when there is threat to public property or to the person or property of any person. We hold that the Ist respondent was not holding an office of profit when he was a lessee under the Ferries Act just like an Excise contractor or a fair price shop dealer who sells grains supplied by Government is not such a holder of office of profit. In view of the above findings it is not necessary to decide the question whether the lease was subsisting on the date of scrutiny of nomination or not Thus in any view of the matter it cannot be held that the Ist respondent was disqualified for being chosen as a member of the State Legislature. The rejection of his nomination papers was, therefore, improper. The election of the appellant was, therefore, rightly set aside by the High Court on the ground mentioned in section 100 1)(c) of the Act. 388 The appeal, therefore, fails and it is dismissed. Having regard to the peculiar features of the case we direct the parties to bear their own costs both in this Court and in the High Court. N.P.V. Appeal dismissed.

% The first respondent filed an election petition before the High Court for setting aside the election of the appellant to the State Legislative Assembly under section 100(1)(c) of the Representation of the People Act, 1951, contending that the rejection of his nomination papers by the Returning officer was erroneous as he had, in fact, completed 25 years of age on the date of his nomination. The petition was opposed by the appellant contending that as the first respondent had not completed 25 years of age on the date of scrutiny of nominations, the nomination papers had been rightly rejected, that as the first respondent had not subscribed the oath as required by article 173(a) of the Constitution, he was not qualified to contest the election, and that the first respondent was also disqualified to be chosen to fill a seat in the Legislature of the State, as on the date of scrutiny of the nominations he had a subsisting contract entered into by him with the Government, under which he had been treated as a lessee of the Ferry for the period between 1.4.85 to 31.3.86. The High Court framed issues on the basis of pleas raised by parties and, after recording their evidence held that the first respondent had completed the age of 25 years on the date of scrutiny and, therefore, had necessary qualification for being a member of the Legislative 371 Assembly, that the appellant had not proved that the first respondent had not subscribed the oath as required by law, and that as the first respondent had been relieved from the charge of the Government ferry with effect from 21.11.85, there was no subsisting contract between the first respondent and the Government on the date of scrutiny of nominations and, therefore, he was not disqualified under section 9 A of the Act. It accordingly came to the conclusion that the rejection of the nomination papers filed on behalf of the first respondent was improper and set aside the election of the appellant. In the appeal before this Court, a further plea was raised on behalf of the appellant that the first respondent was also disqualified from contesting the elections as he held an office of profit under the State Government by virtue of the contract entered into by him with the State Government, even though the contract in question may not be one of those contracts specified in section 9 A of the Act. Dismissing the appeal, ^ HELD: 1. The first respondent was not disqualified for being chosen as a member of the State Legislature. The rejection of his nomination papers was improper. The election of the appellant was, therefore, rightly set aside by the High Court, on the ground mentioned in Section 100(1)(c) of the Representation of the People Act 1951. [387G H] 2.1 An analysis of section 9 A of the Representation of the People Act, 1951 shows that only in two cases a person would be disqualified if he has entered into a contract with the appropriate Government in the course of his trade or business which is subsisting on the date of scrutiny of nomination. They are (1) when the contract is one for supply of goods to the appropriate Government and (2) where the contract is for execution of any works undertaken by that Government. Unless the contract in question is one which clearly falls under section 9 A of the Act it cannot be held that the person who is a party to the contract is disqualified for being chosen as a member of the State Legislature.[382F G] In the instant case, the contract is not one for supply of goods to Government. The first respondent had acquired in the public auction the right to collect the toll by paying the amount offered by him under the contract and had not undertaken any contract for execution of any works undertaken by the Government. When a person acquires a right to collect toll at a public ferry under section 8 of the Ferries Act. it cannot be 372 held that he is performing a contract for execution of works undertaken by the Government. [385D, G H] Merely because under one of the conditions of the Form of lease prescribed under the Ferries Act, the lessee is under an obligation during the period of lease to mark buoys or in any other suitable manner all submerged obstructions or dangerous rocks in the rivers within half a mile of the landing ghats, and shall be held responsible for any loss or damage caused to the marboats striking against such submerged obstructions or dangerous rocks it cannot be held that the first respondent had undertaken to execute works undertaken by the Government. [386B C] Having regard to the conditions in the lease and the provisions of the Ferries Act and the rules made thereunder the activity undertaken by the lessee under the agreement cannot be considered as an agreement for execution of works undertaken by the State Government and, therefore, the contract, which the first respondent had entered into with the State Government, even though it was subsisting on the date of the scrutiny of nominations, would not have the effect of disqualifying him for being chosen as a member of the State Legislative Assembly, since section 9 A of the Representation of the People Act, 1951 is not at all attracted to such a case. [386D E] B. Lakshmikantha Rao vs D. Chinna Mallaiah and others, approved. N. Satyanathan vs K. Subramanyan and others; , explained. Ram Padarath Mahto vs Mishri Singh & Anr., ; referred to. 2.2 A lessee of tolls under the Ferries Act is only a contractor who under the lease acquires the right to collect whatever toll is paid by persons who use the ferry against payment to Government in advance whatever amount he has agreed to pay at the time of auction. Whether he makes any profit in that business or not depends ultimately on the amount of toll he is able to realise during the whole period of lease. Such a contract is essentially in the nature of a business. It cannot be termed as an office in any sense. A transaction of lease under the Ferries Act is not a lease of an office. The first respondent was, therefore, not holding an office of profit when he was a lessee under the Ferries Act just like an 373 Excise Contractor or a fair price shop dealer who sells grains supplied by Government is not such a holder of office of profit.[386H; 387A B, F] State of Uttar Pradesh vs Satya Narain Prasad, ; , referred to. 2.3 The High Court was right in upholding, on the basis of the evidence of the three witnesses examined by the first respondent and the electoral roll and the High School Leaving Certificate, that the first respondent was more than 25 years of age on the date of scrutiny and was thus eligible to be a member of a Legislative Assembly. [377D]

vil Appeal No. 1594 of 1973. From the Judgment and Order dated 19.9.1972 of the Gujarat High Court in L.P.A. No. 72 of 1971. M.V. Goswami for the Appellant. M.N. Shroff, P.C. Kapur and T. Sridharan for the Respondent. The Judgment of the Court was delivered by KHALID, J. This appeal is by special leave granted by this Court on 30.10.1973 against the judgment and order of the High Court of Gujarat dated 19.9.1972 passed in Letters Patent Appeal No. 72 of 1971. The facts necessary in brief for disposal of the appeal are as hereunder: 1085 The Deputy Charity Commissioner, Ahmedabad Region ap pointed under the Bombay Public Trust Act 1950 (for short 'the Act ') started suo motu enquiry under the Act against the appellant as Enquiry No. 578 of 1958 with regard to the nature of the properties involved in the appeal. The Deputy Charity Commissioner held by his order dated 20.10.1960 that the properties were of a public trust. Aggrieved by this order, the appellant filed an appeal before the Charity Commissioner. The Charity Commissioner dismissed the appeal on 15.5.1961. Thereupon the appellant moved the City Civil Court by filing an application under Section 72 of the Act. This application was dismissed on 6.8.1963. The First Appeal No. 448 of 1963, was then filed in the High Court of Gujarat against this order of the City Civil Court. This appeal was dismissed by the High Court on 30.9.1970. The appellant then filed Letters Patent Appeal before the High Court. It was admitted on 25.2.1971. However, it was dismissed on 19.9.1972 holding that the appeal was not maintainable since the requisite certificate under clause 15 of the Letters Patent was not obtained by the appellant. Hence this appeal. The Division Bench dismissed the appeal relying upon an earlier judgment rendered by another Division Bench of that Court reported in Hiragar Dayagar vs Ratanlal, ; This decision was rendered on 26.10.197 1. The ratio of the decision is that the single Judge who disposed of the appeal was hearing an appeal in respect of an order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and that, therefore it was necessary for the appellant to obtain a certificate from the single Judge that the case was a fit one for appeal to the Division Bench under clause 15 of the Letters Patent Appeal. It is this question that we have to consider in the case. For this purpose we will first read Section 72 which is as follows: "72(1) Any person aggrieved by the decision of the Charity Commissioner under Sections 40, 41, 50 A, 70 or 70 A or on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may, within sixty days from the date of the decision, apply to the Court to set aside the said decision. (1 A) No party to such application shall be entitled to produce additional evi dence, whether oral or documen 1086 tary, before the Court, unless the Deputy or Assistant Charity Commissioner or the Charity Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any documents to be produced or any witness to be examined to enable it to pro nounce judgment or for any other substantial cause the Court thinks it necessary to allow such additional evidence: Provided that whenever additional evidence is allowed to be produced by the Court, the Court shall record the reason for its admission. (2) The Court after taking evidence if any, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances. (emphasis supplied) XX XX XX" The argument put forward before the Gujarat High Court in this case which was repeated before us also is that Section 72(1) speaks only of an application to the Court to set aside the decision of the Charity Commissioner, and it does not speak of an appeal. It Was argued that while Sec tions 70 & 71 use the word appeal, a deliberate departure is made in Section 72 by using the word "apply" instead of the word "appeal". On this reasoning, a case is attempted to be built up that the proceedings under Section 72 were not in the nature of an appeal and that, therefore, when the Dis trict Court exercised its jurisdiction it did not exercise an appellate jurisdiction but a special jurisdiction under the Section. This contention was repelled by the Gujarat High Court. It was held that though the well known word "appeal" was not used in Section 72, the absence of that word cannot be regarded as determinative of the nature of the proceedings. The question considered was as to what was the scope, ambit and content of the proceedings before the District Court. Now the question is as to whether it is an appellate jurisdiction, revisional jurisdiction or original jurisdiction that the District Court is exercising under Section 72. The Court answered that it was appellate juris diction. The District Court while dealing with an applica tion under Section 72 was given the power to confirm, revoke or modify a decision of the Charity Commissioner and the Section did not impose any fetters or limits on this power. In an application under Section 72, the entire matter was at 1087 large before the District Court and the District Court had complete power to review the decision of the Charity Commis sioner either on law or on fact in such manner as it thought proper. A contrary view was taken by the Bombay High Court dealing with the identical Section in the decision reported in AIR 1974, Bombay 40. The Bombay High Court relying upon the phraseology used in Section 72 held that the proceedings under Section 72 was not in the nature of an appeal. The question was answered in favour of the contention raised by the appellant before us as follows: "16. If it could not be held in the present case that the court under Section 72 was itself exercising the appellate jurisdiction, undoubtedly the present appeals filed without the leave of the learned Single Judge are incompetent. Such appeals lie only with his leave and not otherwise. If otherwise it could be held, as the natural meaning of the expres sion suggests, that Section 72 provides a remedy by way of an application only, and though the inquiry held by the District Court seems to have some semblance of an appellate jurisdiction, it is not a jurisdiction created by the legislature as an appellate jurisdic tion. It is only where the jurisdiction is appellate and a decision in exercise of such jurisdiction is given, and the High Court has also exercised the appellate jurisdiction, that the bar contemplated by ClaUse 15 of the Letters Patent of obtaining leave of the Court seems to come in. We are therefore satisfied that whatever the type of function that the Court performs under Section 72 of the Act when an applica tion is received by it from any aggrieved party, it is certainly not appellate jurisdic tion as is contemplated by clause 15 of the Letters Patent. If that is, so, the decree or the order of the District Court was not in the exercise of the appellate jurisdiction, even though the High Court exercised the appellate jurisdiction, while hearing First Appeals Nos. 830 & 831 of 1965. " It would be useful at this stage to refer to another decision of the Bombay High Court also rendered by a Divi sion Bench reported in (1956) 58 Bombay Law Reporter 894. There also Section 72 of the Act fell for consideration not in the context of a plea similar to the one raised before us but in the context of a plea under the Limitation Act. 1088 However, the following observations by Chagla, C.J. can be usefully extracted in support of our conclusion: "Now, although Section 72(1) confers a right upon a person aggrieved by the decision of the Charity Commissioner to apply to the City Civil Court, we must look at and consider the real nature of the right that is conferred by this sub section. In substance, if not in form, the right is in the nature of an appeal. The application is intended to set aside the decision of the Charity Commissioner and the City Civil Court must consider that decision, and if satisfied that the decision is errone ous must set it aside and give the necessary relief to the party aggrieved by that deci sion. Therefore, in substance there is very little difference between an application contemplated by Section 72(1) and a right of appeal against the order of the Charity Com missioner. . . . . . . . " This decision was noted by the Bombay High Court in the decision reported in 1974 Bombay 40, but the observations therein were distinguished as follows: "15. We will at once point out that the learned Judges who dealt with the case of had a very different proposition before them. Primarily they were concerned with the obstacle of limitation which was being created in the way of a party by resorting to the technical provisions of Chapter 11 and more particularly Section 75 of the Act. It is in that context when the days for obtaining copies were to be excluded that they read the remedy provided under Section 72 of the Act in a liberal way for the purpose of bringing it under the provisions of Sections 12(2) and 29(2) of the Limitation Act of 1908. While making this liberal construction, the language used by the learned Judges is worth noting. They point out that the application to the Court was in the nature of an appeal but they have nowhere called it as an appeal so provided by the Legislature. While considering the nature and type of function performed by the court under Section 72, the learned Judges have construed liberally the provisions of Section 75 of the Act as also Sections 12(2) and 29(20) of the Limitation Act, 1908. It is possible that the courts might look at 1089 the particular provisions in a liberal manner for the purpose of technical provisions like Limitation Act. However, when it comes to the construction of provisions which awards a positive right to a party it would be appro priate that the provisions are construed in a manner which are conducive to the right of the party. " We have considered the reasoning in the three judgments referred above. With respect, we find it difficult to agree with the reasoning in We agree with the rea soning in the other two cases. The slender thread on which the appellants ' arguments rests is the absence of the word "appeal" in Section 72(1). That alone cannot decide the issue. If the well known word "appeal" had been used in this Section that would have clinched the issue. It is the ab sence of this word that has necessitated a closer scrutiny of the nature extent and content of the power under Section 72(1). The power of the District Court in exercising jurisdic tion under Section 72 is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has powers to correct, modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appel late Court are available to the District Court while decid ing an application under Section 72. To decide this case we must be guided not only by the nomenclature used by the Section for the proceedings but by the essence and content of the proceedings. That being so, we have no hesitation to hold that the proceedings before the District Court under Section 72(1) are in the nature of an appeal and that Dis trict Court exercises appellate jurisdiction while disposing of a matter under Section 72(1). Consequently, the Single Judge of the High Court while deciding the appeal from the order of the District Court deals with a matter made by the District Judge in the exercise of an appellate jurisdiction by a Court subject to the superintendence of the High Court and hence clause 15 of the Letters Patent is directly at tracted. The appeal has, therefore, to fail and is dismissed. However, there will be no order as to costs.

On suo motu enquiry conducted against the appellant with regard to the nature of the properties in question, the Deputy Charity Commissioner held that the properties were of a public trust. The appellant 's appeal before the Charity CommissiOner was dismissed. An application filed under section 72 of the Bombay Public Trust Act, 1950 was also dismissed by the City Civil Court. The First Appeal filed in the High Court was dismissed by a Single Judge. In the Letters Patent Appeal on behalf of the appellant it was contended: that section 72(1) speaks only of an applica tion to the Court to set aside the decision of the Charity Commissioner, and it does not speak of an appeal; that while section 70 and 71 use the word "appeal" and that the proceedings under section 72 were not in the nature of an appeal and that, therefore. when the District Court exercised its jurisdic tion it did not exercise an appellate jurisdiction but a special jurisdiction under 'the section. The High Court dismissed the appeal holding that it was not maintainable since the requisite certificate under clause 15 of Letters Patent Appeal was not obtained by the appellant, that though the well known word "appeal" was not used in section 72, the absence of that word cannot be regarded as determinative of the nature of the proceedings, and that the jurisdiction that the District Court is exercising under section 72 was appellate jurisdiction. Dismissing the appeal. 1084 HELD:1.1 The power of the District Court in exercising jurisdiction under section 72 of the Bombay Public Trust Act, 1950, is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has powers to correct, modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appellate Court are available to the District Court while deciding an applica tion under section 72. [1089D E] 1.2 The proceedings before the District Court under section 72(1) are in the nature of an appeal and that District Court exercises appellate jurisdiction while disposing of a matter under section 72(1). [1089E F ] 1.3 The absence of the word "appeal" in section 72(1) does not make any difference. [1089C] Hiragar Dayagar vs Ratanlal, ; and [1986] 58 Bombay Law Reporter 894 approved and AIR 1974, Bombay 40, disapproved. Consequently, the Single judge of tile High Court while deciding the appeal from the order of the District Court deals with a matter made by the District Judge in the exercise of a appellate jurisdiction by a Court subject to the superintendence of the High Court and hence clause 15 of the Letters Patent Appeal is directly attracted. [1089F G]

ivil Appeal Nos. 3986 3987 of 1989. From the Judgment and Order dated 23.3.1989 and 6.4.1989 of the Calcutta High Court in Appeal No. 69 1 of 1988 and Admiralty Suit No. 6 of 1985 respectively. Dr. Shanker Ghosh, C.R. Addy, A.K. Sil, G. Joshi and Mrs. Urmila Narang for the Appellants. M.K. Ramamurthi, H.L. Tiku and Ashok Grover for tne Respondents. 190 The Judgment of the Court was delivered by VERMA, J. Is omission of the witness ' signature on his deposition recorded on commission, as required by Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, ap plicable to the Original Side, a defect fatal to the recep tion of the deposition in evidence even when the correctness and authenticity of the deposition is undisputed? Subject to the preliminary objection raised by Shri M.K. Ramamurthi, learned counsel for the respondents, this is the main point for decision on merits to be answered with reference to Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, applicable to the Original Side. The Calcutta High Court has held this defect to be fatal and accordingly excluded the entire oral evidence of the defendants recorded on commis sion resulting in the suit being decreed in plaintiffs ' favour on the unrebutted testimony of the plaintiffs. Cor rectness of this view is assailed before us. A foreign vessel M.V. "Vali Pero" sailing under the Greek flag arrived at the port of Calcutta on April 20, 1985; 10 nOn Greek seamen on board that ship filed a suit on August 2, 1985 in the admiralty jurisdiction of the Calcutta High Court for recovery of approximately Rs. 15.40 lacs claimed as their dues from the owners of the vessel; deposi tions of the defendants ' witnesses were recorded on commis sion and submitted to the learned single Judge trying the suit who closed the case on 24.12.1987 for pronouncing judgment on 12.1.1988; before delivery of judgment on 10.8.1988 objection was raised on behalf of the plaintiffs to reception in evidence of the depositions of the defend ants ' witnesses examined on commission on the ground of absence of witness ' signature on the deposition; the objec tion was upheld by the learned single Judge as also by a Division Bench in a Letters Patent Appeal; and the suit has been decreed on 6.4.1989 on the unrebutted evidence of plaintiffs. In the meantime, one of the plaintiffs is stated to have died while another is alleged to be critically ill; and on the 'other hand, the vessel continues to be detained at the Calcutta Port even after the owners have furnished the security demanded from them by interim orders in the suit. Even at the risk of this description being labelled as oversimplification, this is the scenario of the forensic battle in which the point raised has to be decided. We may add that this is not the first journey to this Court of this litigation by special leave during the trial of the suit. 191 Both the Special Leave Petitions are by the defendants, owners of the vessel. One Special Leave Petition is against the judgment dated 23.3.1989 of the Division Bench of the High Court affirming the order dated 10.8.1988 of the learned single Judge excluding the defendants ' oral evidence recorded on commission for the above defect. The other Special Leave Petition is directed against the judgment and decree dated 6.4.1989 of the learned single Judge decreeing the plaintiffs ' suit after exclusion of defendants ' entire oral evidence. Petitioners urged that filing of an appeal under the Letters Patent against the judgment and decree in the suit was futile in view of the earlier Division Bench judgment dated 23.3. 1989 on the main point in controversy even in respect of the final decision. The preliminary objection of Shri Ramamurthi is that the first Special Leave Petition, apart from arising out of an interlocutory order which does not justify its entertain ment, is also now infructuous after decision of the suit itself in which that interlocutory order was made. The other Special Leave Petition should not be entertained, according to Shri Ramamurthi, because it circumvents the statutory internal appeal under the Letters Patent to the Division Bench of the High Court. Shri Ramamurthi contended that this Court should not, therefore, entertain either of these petitions for grant of special leave under Article 136 of the Constitution, even though the powers are fairly wide on account of which he does not contend that they are not maintainable. We shall first dispose of the preliminary objection of Shri Ramamurthi. He has very fairly stated that he does not challenge the maintainability of these petitions but only assails their entertainability under Article 136. In our considered opinion pragmatism and assurance of shortening this unduly protracted litigation are by themselves suffi cient and eloquent reasons to grant leave in these matters and to decide the above question on merits forthwith instead of deferring that decision to a later date. Technically, Shri Ramamurthi is right that ordinarily special leave need not be granted where remedy of a statutory appeal being available has not been exhausted. However, m the particular facts of this case when the decision in Letters Patent Appeal appears to be a forgone conclusion, the appropriate course which commends to us is to grant leave and decide the matter straightaway instead of deferring that decision to a later stage after exhaustion of the futile remedy of Letters Patent Appeal in the High Court. We may at this stage also mention the argument based on res 192 judicata addressed to us. The point raised is: whether the decision by a Division Bench of the High Court affirming the learned single Judge 's order excluding the depositions from evidence will bar a fresh adjudication of that point in the Letters Patent Appeal filed against the final decision in the suit? In our opinion, this academic exercise iS unneces sary in the present case since it cannot be doubted that irrespective of the question of res judicata, earlier deci sion on the same point by a Division Bench of the High Court will atleast be a binding precedent when the matter is reagitated before the Division Bench hearing the appeal against the final decision in the suit. In such a situation directing the resort to the remedy of an appeal under the Letters Patent against the final decision in the suit will needlessly delay decision of the point by this Court. We are, therefore, of the opinion that, in the present case, it is neither necessary to decide the question of res judicata argued before us nor would it be appropriate to refuse leave and direct the petitioner to first exhaust the remedy of an appeal under the Letters Patent in the High Court. We, accordingly, proceed to decide the point involved on merits. Leave granted. Having heard learned counsel for the parties, we have formed the opinion that the High Court was in error in excluding from evidence the depositions of the appellants ' witnesses recorded on commission and in proceeding to decide the suit on that basis. The matter will, therefore, have to go back to the High Court for a fresh decision of the suit treating these depositions as evidence in the suit. In view of this conclusion reached by us, we shall mention only the facts necessary for deciding the main controversy at this stage relating to the construction of Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, applicable to the Original Side. In the above Admiralty Suit No. 6 of 1985, the appel lants (defendants in the suit) filed an application on February 6, 1987 for examining their two witnesses, Mr. A. Kappos and Mr. Parakis, on commission at the Greek Embassy in New Delhi. The respondents ' (plaintiffs in the suit) evidence was concluded on February 23, 1987. On February 25, 1987, the learned single Judge trying the suit directed issue of a commission for examination of the appellants ' two witnesses on commission at the Greek Embassy at New Delhi and Mr. B.C. Kundu, Advocate of the Alipore Bar was appoint ed the Commissioner for this purpose. The Commissioner commenced recording the depositions of these witnesses at New Delhi on May 1, 1987 and concluded it 193 on May 4, 1987. The deposition of each witness was signed by the Commissioner after being read over to the witness who admitted it to be correct. However, the signature of the witness was not taken on the deposition. The Commissioner settled the minutes in a meeting with counsel for parties in which the depositions recorded on commission were admitted to be correct and counsel for the parties signed the minutes in token of their acceptance. The minutes are as under: "A meeting was held this afternoon dated 15th May, 1987 at 4.15 P.M. at lB, Old Post Office St., Calcutta I to furnish the report of the Commission. Members present: Mr. Taimur Hossain Advocate on behalf of the plaintiffs Mr. A.K. Auddy Advocate (Sandersons & Morgans) on behalf of the defendant Mr. B.C. Kundu A list of Exhibits as also copies of deposi tions recorded at Greek Embassy, New Delhi were given to the parties. No amendment or correction was suggested in the deposition by either of the parties. The Report of the Commissioner would be submitted on Monday, the 15th May, 1987. Illegible Commissioner Appointed by the Hon 'ble High Court vide order dated 25.2.87 sd/ Md. Taimur Hossain Advocate for the plaintiffs 194 sd/ A.K. Auddy Advocate 15.5.87 Received a copy Sig. Illegible Recd. a copy of the minutes. sd/ A.K. Auddy. " The Commissioner then submitted his report along with the depositions recorded by him in a sealed cover to the Registrar (Original Side) of the High Court. The parties also filed written submissions in the court treating these depositions as evidence in the suit and on December, 1987 the learned trial Judge recorded the proceedings as under: "The Court: Deposition including the documents taken on commission are formally tendered in Court by the learned Advocate appearing for the defendant (in a sealed cover). Both the parties have submitted their written argument in Court earlier. Let this suit appear in the List on 12.1.1988 at 3 P.M. marked "For Judg ment". " It is clear that till closing of the suit for judgment, no objection was raised on behalf of the respondents to inclusion of the depositions of appellants ' witnesses exam ined on commission in evidence of the suit. Somehow the judgment was not delivered on 12.1.1988 and even thereafter for quite some time and the learned single Judge then made an order releasing the suit. This led to a special leave petition in this Court by the respondents and an order was made by this Court requesting the learned single Judge trying the suit to dispose of the suit on merits instead of releasing it. It was then on 10.8.1988 that respondents ' (plaintiffs in the suit) counsel raised the objection to inclusion of the depositions of appellants ' witnesses examined on commis sion in evidence of the suit on the ground that the deposi tions were not signed by the witnesses as required by Rule 4 ibid. That objection was upheld by the learned single Judge as well as a Division Bench of the High Court in L.P.A. against that order. The High Court has held this defect to be fatal on its view that even the requirement of witness ' signature in Rule 4 ibid is mandatory. S.L.P. No. 4074 of 1989 is against this order. On this view, the learned single Judge has proceeded to decree the suit on the basis of respondents ' unrebutted evidence and S.L.P. No. 93 18 of 1989 195 is against the judgment and decree in the suit. The controversy on merits depends ultimately on the correct construction of Rule 4 of Chapter XXII of the Cal cutta High Court Rules, 1914 applicable to the Original Side with reads as under: "4. Deposition to be read over, signed etc. After the deposition of any witness shall have been taken down, and before it is signed by him, it shall be distinctly read over, and, where necessary, translated to the witness in order that mistakes or omissions may be recti fied. The deposition shall be signed by the witness and left with the Commissioner who shall subscribe his name and date of the examination." Dr. Shanker Ghosh, learned counsel for the appellants contended that the omission of witness ' signature on the deposition recorded by the Commissioner does not invalidate the deposition atleast in a case like the present where the correctness and authenticity of the deposition is undisput ed. He argued that in this sense requirement of the witness ' signature on the deposition is not a mandatory requirement, the absence of which may invalidate the deposition. He also contended that the defect, if any, was curable by obtaining the witness ' signature even now for which the appellants are prepared. He added that in order to put the matter further beyond controversy, the affidavits of the witnesses examined on commission were filed in the High Court during pendency of the appeal before the Division Bench admitting correct ness of their depositions. He also placed strong reliance on admission of the respondents ' counsel to the correctness of the depositions, in the minutes recorded by the Commissioner on 15.5.1987 as well as the omission to raise any such objection till 10.8.1988 much after the suit was closed for judgment on 24.12.1987. He finally urged that the mistake, if any, was of the Commissioner in not taking the signatures of the witnesses and no party should be prejudiced by an act or omission of the Commissioner who was an officer of the Court. In reply, Shri M.K. Ramamurthi, relied on the reasons given in the Division Bench 's judgment dated March 23, 1989 for construing this requirement in Rule 4 ibid as mandatory and on that basis excluding from evidence in the suit of these depositions. He also contended that copies of affida vits of the witnesses filed in the High Court were not supplied to the respondents. He added that the argument of curing the defect by obtaining signatures of the witnesses on the depositions was not advanced in the High Court due to which it 196 should not be permitted now. Shri Ramamurthi also made the grievance that belated pleas of the appellants have caused needless harassment to the respondents. Since we have come to the conclusion that these appeals should be allowed on the construction of Rule 4 ibid, we need not decide the other points urged. It is needless to burden our decision with the several well known authorities cited at the Bar indicating the test to be applied to decide whether a provision is mandatory or directory. The real difficulty arises only in the applica tion of the well settled principles. The essential require ment of Rule 4 is that the deposition of a witness examined on commission shall be taken down in writing read over, and, where necessary, translated to the witness in order that mistakes or omissions, if any, may be rectified or supplied. The mandate in Rule 4 to this extent must be complied strictly in order to ensure a correct record of the deposi tion. The further requirement of signature of Commissioner with the date of examination and deposition being left with the Commissioner to enable its production in court is to ensure its authenticity. The only remaining requirement in Rule 4 of the witness ' signature on the deposition has relevance to the admission of the witness of its correct ness. The signature of the witness is not a part of the deposition and apart from acknowledging the correctness of his deposition on the deposition itself, it is not essential for any other purpose in this context. It is well known that under the Code of Civil Procedure a deposition recorded in a Court, except that under Order 18, Rule 16 C.P.C., does not require the witness ' signature on the deposition. It appears that witness ' signature on the deposition recorded on com mission is only required for court 's assurance since the witness is not examined in court. Accordingly, it cannot be said reasonably that the omission of witness ' signature on the deposition renders the deposition incomplete. If this be the true import of the witness ' signature on the deposition recorded on commission, the deposition cannot be treated as incomplete, much less, invalid merely due to omission of witness ' signature when correctness or authenticity of the deposition is undisputed. It appears to us that while the essential requirements of Rule 4 indicated above are no doubt mandatory requiring strict compliance, the requirement of witness ' signature therein is directory of which substantial compliance is sufficient. There is substantial compliance of this directo ry requirement where the correctness and authenticity of the deposition is undisputed. Compliance can be had of this requirement even by subsequent admission of correctness of the deposition by 197 the witness, in case of dispute. This construction of Rule 4 made by us also promotes the object of its enactment instead of negativing it. Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscar riage by enabling the court to do justice in myriad situa tions, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system. In this case, none disputes the correctness and authen ticity of the depositions recorded on commission but there is omission of witness ' signature thereon. The question is: does reception of these depositions in evidence violate rule 3 ibid in a manner which is impermissible or this omission can be overlooked as insignificant since correctness and authenticity of the depositions is undisputed? We have no doubt that cause of justice would be served instead of being thwarted and the avowed object of Rule 4 ibid achieved by treating it to be an insignificant omission in the present case. The consequence of failure to comply with any require ment of Rule 4 ibid is not provided by the statute itself. Accordingly, the consequence has to be determined with reference to the nature of the provision, the purpose of its enactment and the effect of the noncompliance. Rule 4 uses the word 'shall ' even while requiring the signature of the witness as it uses the word 'shall ' in respect of the other requirements of the Rule. Ordinarily, the word 'shall ' used at several places in Rule 4 must be given the same meaning at all places. However, it is also settled that this is not an invariable rule and even though the word 'shall ' is ordinarily mandatory but in the context or if the intention is otherwise it may be construed to be merely directory. 198 In short, the construction ultimately depends on the provi sion itself keeping in view the intendment of the enactment and the context in which the word 'shall ' has been used. It would suffice to refer only to the decision in Ganesh Prasad Sah Desari & Anr. vs Lakshmi Narayan Gupta, ; The word 'shall ' was used therein in connection with the Court 's power to strike off the defence against ejectment in a suit for eviction of tenant in case of de fault in payment of rent. This Court construed the word 'shall ' in that context as directory and not mandatory since such a construction would advance the purpose of enactment and prevent miscarriage of justice. In taking this view, this Court was impressed by the fact that the default at tracting the drastic consequence of striking out defence may be only formal or technical and unless the provision was treated as directory, it would render the court powerless even where striking out the defence may result in miscar riage of justice. We may refer to a passage from Crawford on 'Statutory Construction ' which was quoted with approval in Govindlal Chagganlal Patel vs The Agricultural Produce Market Committee, Godhra and Others, ; and relied on in this decision. The quotation is as under: "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern and these are to be ascertained, not only from the phraseology of the provision, but also while considering its nature, its design and the consequences which would follow from construing it the one way or the other. " It cannot, therefore be doubted that the word 'shall ' used in the expression 'deposition shall be signed by wit ness ' in Rule 4 ibid has to be given the meaning keeping in view the intention of the legislature, the purpose of the enactment and the consequence which would follow from con struing it as mandatory or directory. If the word 'shall ' used in this expression is construed as mandatory, non compliance of which nullifies the deposi tion, drastic consequence of miscarriage of justice would ensue even where omission of the witness ' signature is by inadvertence and correctness of the deposition as well as its authenticity is undisputed. On the other hand, if the word 'shall ' used in this expression is treated as directo ry, the court will have power to prevent miscarriage of justice where the omission 199 does not cause any prejudice and the defect is only techni cal. The object of the provision being merely to obtain acceptance of the witness to the correctness of the deposi tion, that object would be advanced by taking this view and thereby empowering the court to avoid the drastic conse quence of nullifying the deposition where the correctness and authenticity is undisputed. In a case where the correct ness has been disputed, it would be permissible for the court to examine the effect of omission of the witness ' signature and to reject the deposition only if it does not accept the correctness and authenticity thereof on the available material. We do not find any cogent reason to take the view that the word 'shall ' occurring in the expression 'deposition shall be signed by the witness ' in Rule 4 ibid is mandatory which requires strict compliance and mere omission of which renders the deposition invalid and incapable of being read as evidence. Various facets discussed above lead unerringly to this conclusion. In view of the above discussion, we are of the opinion that the requirement of witness ' signature on the deposition in Rule 4 ibid is directory even though the requirement of the deposition being recorded, read over to him and correct ed wherever necessary is mandatory. Mere omission of the witness ' signature on the deposition does not render the deposition invalid when the correctness and authenticity thereof is undisputed. In the present case, correctness and authenticity of the deposition of the appellants ' witnesses being undisputed and the technical objection of omission of the witness ' signature on the deposition being raised as an after thought much after the learned single Judge had closed the suit for delivery of judgment, the objection is untena ble. With respect, the High Court was in error in upholding this objection and excluding the deposition of the appel lants ' witnesses examined on commission from the evidence in the suit. The result of exclusion of the appellants ' oral evidence on this untenable technical ground is that the suit has been decreed treating respondents ' evidence to be unre butted. Exclusion of appellants ' entire oral evidence has undoubtedly resulted in miscarriage of justice. The judgment and decree passed by the learned single Judge is vitiated for this reason alone. We end on a melancholy note for the past with hope for a better future. At a time when the minds of all of us are rightly exercised by the proverbial laws delays and innova tions are being made and suggested to prevent the apprehend ed collapse of the existing system, the 200 course of this litigation leaves us sad. No degree of thought can help unless translated into action. A more pragmatic appreciation and interpretation of the rules of procedure with due despatch would certainly have considera bly shortened the litigation so far. With both sides appear ing equally keen for a quick resolution of the dispute and this being obviously welcome to the Court we see no reason why the ultimate decision of the suit cannot now be reached early. We leave the matter with the fervent hope that the dispute will now be resolved expeditiously without any avoidable delay. We contribute the first step in that direc tion by hastening to pronounce our judgment on conclusion of the elaborate arguments on September 8, 1989, illuminating the penumbral zone. Consequently, these appeals are allowed. The order dated 10.8.1988 passed by the learned single Judge, the judgment dated 23.3.1989 passed by the Division Bench of the High Court affirming that order; and the judgment and decree dated 6.4.1989 passed by the learned single Judge are all set aside. The suit shah be decided afresh by the learned single Judge treating the depositions of appellants ' wit nesses recorded on commission as evidence in the suit, after hearing the arguments of parties on merits. The respondents alone cannot be blamed for this situation and, therefore, we direct the parties to bear their own costs. R.S.S. Appeals al lowed.

There are four Medical Colleges in the City of Bombay, all affiliated to the University of Bombay. Out of four, three colleges are run by the Municipal Corporation and one is run and conducted by the State of Maharashtra. Rule 4A framed by the Municipal Corporation and Rule 5 framed by the State Govt. vide Govt. Resolution dated June 18, 1971 govern the admissions of students to post graduate degree and diploma course in the respective Medical Colleges. Both the aforesaid Rules provide for collegeate institu tional preference for admission in the M.D. Course. In other words, in each college, candidates who passed their M.B.B.S. exam from that college were to be preferred for purposes of admission to the Post Graduate M.D. degree, no matter wheth er the candidates had secured less marks than those who secured higher marks, having passed the M.B.B.S. Exam. from other colleges. On this basis some candidates who were not able to secure admission to the M.D. Course in the respec tive colleges from which they had passed their M.B.B.S. Examination were not also admitted in the other medical colleges in the City of Bombay, in view of college wise institutional preferences as provided by Rule 4A and Rule 5 referred to above. Those students/candidates challenged the validity of the afore said Rule 4A and Rule 5 framed by the Municipal Corpn. and the State Govt. in the High Court, as being violative of article 14 of the Constitution. The High Court allowed the Writ Petition and struck 920 down the impugned Rule 4A in whole and Rule 5 in so far as it applies to the Govt. Medical College, as discriminatory and violative of article 14 of the Constitution and thus in valid. Hence these appeals by Special Leave. Dismissing the appeals with some directions, the Court, HELD: When the University is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post graduate degree course of the same University except in order of merit, will exclude merit to a great extent affecting the standard of educational institutions. In such circumstances, college wise institutional prefer ence cannot be supported and, this Court has not approved of such preference at all. [931F G] So far as educational institutions are concerned unless there are strong reasons for exclusion of meritorious candi dates, any preference other than in order of merit, will not stand the test of article 14 of the Constitution. [932C D] The Rules are discriminatory and do not satisfy the test of reasonable classification and as such, cannot be sus tained. The Court accordingly dismissed the appeals and directed that the students who have been admitted to post graduate M.D. Course pursuant to the impugned Rules, their admission shall not be interfered with or disturbed. [933E] The High Court has directed to the appellants to frame rules adopting certain alternative methods for admission in the Post graduate M.D. Course for the next year. The said directions appear to be in the nature of suggestions by the High Court and the appellants will be free to frame the rules for admission in the Post graduate M.D. Course in the said four colleges in the City of Bombay in conformity with the provision of article 14 of the Constitution and in the light of the Judgment of this Court and in framing the Rules, the appellants may take into consideration the sug gestions of the High Court. [934G H; 935A] Dr Pradeep Jain vs Union of India & Ors., ; , distinguished. Nidamarti Mahesh Kumar vs State of Maharashtra & Ors. , ; , not applicable. 921 Jagdish Saran & Ors. vs Union of India & Ors. , ; , not applicable. State of Rajasthan & Anr. vs Dr. Ashok Kumar Gupta & Ors., ; , not applicable.

Appeal No. 128 of 1960. Appeal by special leave from the judgment and decree dated November 4, 1955, of the Punjab High Court in R. section A. No. 493 of 1950. K. C. Sarpal, section K. Mehta and K. L. Mehta, for appellant. Anant Ram Whig and J. B. Agarwal, for respondent No. 1. 1962. September 14. The judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is filed against the judgment and decree of the High Court of Punjab, at Chandigarh, in Second Appeal No. 493 of 1950 setting aside the order of the Subordinate judge, Amritsar, confirming that of the Revenue Officer, Amritsar, decreeing the appellant 's suit. The subject matter of the appeal is land measuring 9 kanals and 2 marlas bearing Khasra Nos. 292 and 296 in mauza Kot Syed Mahmud,in the District of Amritsar; the previous corresponding Khasra Nos. of the land were 324 and 328. This land formed part of a larger area which originally belonged to a number of co sharers, including Teja Singh and jhandha Singh. There was a partition among the said co sharers and pursuant to that partition, on April 20, 1929 an application was filed before the Revenue Authorities 57 for mutation of the names in accordance with the terms of the partition; and the petition was signed by all the co sharers including Teja Singh and jhandha Singh. It was stated in the petition, marked as exhibit D 6 in the case, that in respect of the said Khasra numbers one share should be entered in the name of Teja Singh and 7 shares in the name of jhandha Singh. This fact is not admitted. But in the mutation that was effected on August 26, 1929 the entire extent of the said Khasra numbers was shown against Teja 'Singh alone. The mutation number was 960. On August 10, 1934, jhandha Singh, discovering the mistake committed in the revenue record, applied to the Revenue Authorities for correcting the said mistake. The Revenue Authorities enquired into the matter from August 10, 1934, to October 31. The record of that enquiry discloses that Mula Singh, the brother of Teja Singh Teja Singh died and Mula Singh was his heir admitted the mistake made in the revenue record before the concerned authorities. That apart, they had before them a report of the enquiry made by a subordinate officer of the revenue department tracing the history of the said Khasra numbers and 'also giving the relevant facts, namely, the partition between the co sharers and the joint Application filed by them for mutation of their names in respect of the plots allotted to each one of them. On the material so placed before them, the Revenue Authorities corrected the mistake, and against mutation ,No. 1490 the correct shares of Teja Singh and Jhandha Singh, namely, 1/8 and 7/8 respectively were given. On October 24, 1934, i.e., after jhandha ,Singh had filed the application for correcting the mutation No. 960, Mula Singh executed a sale deed conveying the said land bearing Khasra numbers 324 and 328 in favour of Gurbaksh Singh, the appellant, i.e., on the very date when Mula Singh had to appear before the Revenue Authorities. The appellant obtained a security bond from Mula Singh to indemnify him against any loss that might be caused to him in 58 respect of the said property; he also paid the bulk of the consideration only on October 22, 1937, i.e., after three years of the sale deed. jhandha Singh in his turn sold his 7/8 share in the said Khasra numbers, along with others, to Gopal Singh from whom Nikka Singh, the first respondent, purchased the said share by a sale deed dated October 27, 1936. The appellant filed a suit under section 117 of the Punjab Land Revenue Act, 1887, out of which the present appeal arises, in the revenue court for a declaration of his exclusive title to the said two Khasra numbers, and in that suit Nikka Singh, the first respondent, and Mula Singh, the second respondent, were the defendants. The suit has had a chequered career and it. is not necessary to trace it. It would be enough if we start with the decision of the Subordinate judge dated February 14, 1949, to whose file the suit was transferred from the file of the revenue court by the District judge after it was remanded by the High Court on an earlier occasion. The learned Subordinate judge expressed his opinion on the relevant issue thus: . . so far as the land in suit is concerned. , Mula Singh had sold it to the plaintiff on 24th October, 1934, and any admission by him made on 10th August, 1936 would not affect the plaintiff. Under Section 37 of the Land Revenue Act, a mutation can be based either on facts proved or admitted. No facts had been proved before the Officer who attested mutation No. 1490, and Mula Singh was nobody to admit any facts in relation to land which he had sold two years before to the plaintiff. The mutation entry 1490 was therefore not properly made and I decide issue No. 11 accordingly. " It will be seen from the aforesaid observations that the learned Subordinate Judge based his finding on the assumption that the admission of Mula Singh 59 could not bind the appellant who purchased his property before the said admission and that there was no the mutation entry No. 1490. On appeal the learned District judge, though he made certain observations indicating his line of thought, did not give any definite finding on the question of title, but he dismissed the appeal on the finding that the appellant was a bona fide purchaser in good faith. The first respondent preferred a second appeal to the High Court. The High Court held that the correction of the earlier mutation No. 960 was made with the consent of both the parties and there is a presumption attached to the correctness of the later mutation and that the appellant was fully cognizant of the real state of affairs, namely, that Mula Singh had only 1/8 share in the said Khasra numbers. On those findings, the decree of the learned Subordinate judge was set aside and the plaintiff 's suit was dismissed with costs throughout. Hence the appeal. Learned counsel for the appellant raised before us the following points: (1) The High Court has no jurisdiction under sections 100 and 101 of the Code of Civil Procedure to set aside concurrent findings arrived at by the two lower courts. (2) Under section 37 of the Punjab Land Revenue Act there is a presumption in favour of an entry in the revenue record if it is made in accordance with the facts proved or admitted to have occurred; but, as in the present case the entry was corrected on the admission of Mula Singh after he transferred his interest in favour of the appellant, the said admission could not constitute a legal basis for the said entry and therefore no presumption under that section would attach to that entry. It is true that as early as 1931 the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact however gross the error may seem to be, and the said ruling has since been followed by all the 60 courts in India and accepted by this Court in a number of decisions. But in this case the learned District judge has not given any finding on the question of title, but contented himself to dispose of the appeal on the ground that the appellant purchased the land in good faith from Mula Singh. The question of title was , therefore, left open and the High Court was certainly within its right in giving its own finding thereon. The finding given by the learned District judge that the appellant was a bona fide purchaser in good faith was not based on the evidence in the case, but was merely an ipsi dixit, Nor did the District judge 'consider the impact of the provisions of section 41 of the Transfer of Property Act on the facts of the case. Such a finding arrived at without evidence and without applying the correct principles of law cannot obviously bind the High Court. Section 41 of the Transfer of Property Act reads: " 'Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not. be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. " The general rule is that a person cannot confer a better title than he has. This section is an exception to that rule. Being an exception, the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had, after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith. In this case the facts are tell tale and they establish beyond doubt that the appellant had 61 the knowledge that the title of his transferor was in dispute and he had taken a risk in purchasing the same. The appellant and Mula Singh belong to the same village Kot Syed Mahmud. Mula Singh sold his property, to the appellant on the very date on which he had to appear before the Revenue Authorities. Though the sale deed was executed on October 24, 1934, the consideration was actually paid only three years thereafter i.e., on October 22, 1937. The appellant also took a security bond from Mula Singh to indemnify himself against any loss that might be caused to, him in the property in dispute. These facts show that the appellant had knowledge of the defect in the title of Mula Singh. It is, therefore, not possible to hold that he had purchased it in good faith. The High Court, having regard to the aforesaid circumstances, held that the appellant knew that the transaction was in respect of a property of which the title was extremely doubtful. There are no permissible grounds for challenging the correctness of that finding before us in an appeal under article 136 of the Constitution. Nor do we see any merits in the contention that . no presumption can be drawn in favour of the correctness of the impugned entry in the revenue record on the ground that the condition given in the section are not satisfied. Section 37 of the Punjab Land Revenue Act reads: "Entries in records of rights or in annual records, except entries made in annual records by patwaris under clause (a) of section 35 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in. subsequent records otherwise than by (a) making entries in accordance with facts proved or admitted to have occurred; (b) making such entries as are agreed to by all the parties interested therein or are supported 62 by a decree or order binding on those parties; x x x x Section 44 says that an entry made in a record of rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions of that Chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. If the entry No. 1490 substituting entry No. 960 had been made in strict compliance with section 37 of the Punjab Land Revenue Act, it cannot be disputed that there would be a presumption that the new entry was lawfully substituted for the old. In that event the old entry should yield to the new entry. This presumption is no doubt rebuttable. There is force in the contention of learned counsel that Mula Singh, having parted with the interest in the property, could not have admitted the correctness of the new entry or agreed to have the old entry corrected in the manner done so as to bind a purchaser. But that contention does not avail him in the present case as we are satisfied on a perusal of the record that mutation entry 1490 had been made in accordance with the facts proved before the Revenue Authorities. There were the following pieces of evidence before the Revenue Authorities, among others: (1) evidence of Mula Singh; (2) the report of the subordinate revenue officer with all the connected annexures, including exhibit D 6, wherein the terms of the partition were recited. On the said evidence the Revenue Authorities corrected the entry in the record in the manner they did. It must, there fore, be held that the provisions of section 37(a) of the Punjab Land Revenue Act were satisfied. If so, there is a presumption that the later entry was correct. The appellant did not adduce any evidence to rebut the said presumption. On the other hand, exhibit D 6, the application dated April 20, 1929, for mutation of names in the revenue record, signed by all the cosharers contained the following recital: 63 "Entries with respect to the following Khasra Nos. may be made in the revenue papers in the name of Teja Singh, co sharer No. 5 to the tune of one share and Bhai jhandha Singh co sharer No. 2, to the tune of seven shares: 324 3.16, 328/5.06 etc. The High Court was, therefore, right in holding that there was a presumption in favour of the correctness of the entry and the appellant had failed to rebut the same. The judgment of the High Court is correct and the appeal fails and is dismissed with costs. Appeal dismissed.

The lands of village Gudur were irrigated by tanks which received water from the Venkatagiri river through the "Gudur anicut system". The Government proposed to make alterations in the Chennur anicut up the river for supplying water to the Chennur tank for irrigating lands of village Chennur. The residents of village Gudur filed a suit for a declaration that the Government had no right to alter or extend or add to the Chennur anicut over the river, and stated in the plaint that it was not necessary to ask for a permanent injunction as the Government was bound to give effect to the declaration granted by the Court. Held, that the suit was barred by section 4 of the Madras irrigation Tanks (Improvement) Act, 1949. Section 4 provided 309 that no court shall entertain any suit for an injunction to restrain the exercise of any powers conferred on Government by section 3. Section 3 empowered the Governtnent to "raise the full tank level of any tank or to take any other measures for increasing its capacity or efficiency". The proposed alterations were within section 3 as they would increase the efficiency of the Chennur tank by making a larger supply of water available within the holding power of the tank. It was not correct to say that section 3 only authorised improvements in the tank itself or in the supply channels from the tank but not in the anicut. Though the plaintiffs did not formally ask for an injunction, the suit, in effect, was one for an injunction to restrain the Government from exercising its powers under section 3. It is clear that the action proposed to be taken by Govern ment was under the powers given under s.3. The mere fact that no notice as required by r. 5 specifying the nature of the improvement, its cost etc. was issued did not indicate that the action was not under section 3 nor did it invalidate the order proposing the improvement. The proposed action had not been taken when the suit was filed and there was still time to publish the notice.

ivil Appeal No. 3901 of 1981. From the Judgment and Order dated 22.1.1987 of the Rajasthan High Court in S.B. Civil Revision No. 672 of 1983. V.M. Tarkunde and L.K. Pandey for the Appellant. J.P. Goyal, R.K. Gupta, K.K. Gupta, (NP) and Rajesh, (NP) for the Respondents. The Judgment of the Court was delivered by SHARMA, J. This appeal by special leave is directed against the judgment of Rajasthan High Court dismissing a civil revision application filed by the appellant in the following circumstances. The appellant, a registered Society, filed the suit out of which this appeal arises in the court of the District Judge, Jaipur City in respect of an immovable property through its the then Secretary which was numbered as Suit No. 11 of 1973. The counsel engaged by the appellant were Sri Satya Narain Sharma and Sri Shyam Bihari Agarwal. The suit was later transferred to the court of Additional Dis trict Judge No. 1, Jaipur City where it was renumbered as Suit No. 116 of 1974. After the institution of the suit, an election of the office bearers of the Society was held on 1.6.1973 and according to the appellant 's case one Sri Laxman Das Swami was elected as the Secretary. On 4.9.74 a prayer for withdrawing the suit was made by one Hari Narain Swami through another lawyer claiming to have been elected as the Secretary of the Society. In support of his claim of having been elected as the Secretary of the Society Hari Narain Swami produced certain documents on the basis of which the Trial Court allowed the suit to be withdrawn. According to the case of the appellant, Hari Narain Swami was not elected as the Secretary and had no locus standi to withdraw the suit. Since no notice was given of his applica tion for withdrawal of the suit either to the then Secretary Laxman Das Swami or to the learned advocates Sri Satya Narain Sharma or Sri Shyam Bihari Agarwal, through whom the suit had been instituted, none of them had any knowledge of the order passed by the court. Later, in the next election, another Secretary named Jeeva Nand Swami was elected, and when he 236 learnt about the fate of the suit, an application was filed for recalling the order of withdrawal and restoring the suit to its file. The prayer was contested and the trial court rejected the application. The appellant Society challenged the order before the High Court by a petition under section 1 15 of the Code of Civil Procedure which was also dismissed by the impugned judgment. The trial court after holding that the appellant 's application filed under section 15 1 of the Code of Civil Proce dure, was not maintainable, proceeded further to consider the question as to who was the duly elected Secretary of the Society, entitled to prosecute or withdraw the suit and accepted the case of Hari Narain Swami. The High Court has agreed with the trial court that the application under section 15 1 of the Code of Civil Procedure was not maintainable. While agreeingwith the argument of the appellant that the trial court had committed several serious errors in deciding the question as to who was the elected Secretary of the Society on the relevant date in favour of the respondent the High Court observed that the mistake could not be corrected in the present situation. It has been contended by Mr. Tarkunde, the learned counsel for the appellant, that the application under section 15 1 of the Code of Civil Procedure, for restoration of the suit was maintainable and the error committed by the trial court while recording the finding on the merits of the case was such which the High Court ought to have rectified. The learned advocate representing the respondents has strenuous ly argued that the trial court has no jurisdiction to recall its order permitting the withdrawal of the suit under its inherent power and the High Court has rightly held that the only remedy of the appellant is to file a fresh suit. The finding recorded by the trial court on the merits of the case has also been relied upon. The learned counsel for the appellant has challenged the correctness of the trial court 's finding in favour of the respondent 's case that Hari Narain Swami had been duly elected as the Secretary of the appellant Society and had, therefore, full authority to withdraw the suit, on several grounds. Since we are of the view that the case has to go back to the trial court for reconsideration of the evidence on this point, we do not propose to deal with the argument on behalf of the appellant in detail, except mentioning one of them. It has been stated that a dispute, relating to the election of the Secretary of the Society, had arisen between the parties which ultimately went before the Registrar of the Cooperative Societies, who decided the matter in 237 favour of Laxman Das Swami and against Hari Narain Swami. A writ petition filed thereafter by Hari Narain Swami before the High Court (registered as C.W.P. No. 1406 of 1975) was dismissed. It is said that the trial court failed to appre ciate the impact of the judgments of the Registrar and the High Court which has vitiated ' the impugned decision. In reply, it has been argued by the learned counsel for the respondents that the High Court in C.W.P. No. 1406 of 1975 did not decide the dispute finally and left it to be settled by the civil court. Beyond pointing out that even according to the impugned judgment of the High Court the errors in the judgment of the trial court are serious, we do not consider it appropriate to deal in detail with the arguments of the learned counsel, as the disputed question has to go back for reconsideration. The main question which requires consideration, however, is whether the trial court has jurisdiction to cancel the order permitting the withdrawal of the suit under its inherent power, if it is ultimately satisfied that Hari Narain Swami was not the Secretary of the appellant Society and was, therefore, not entitled to withdraw the suit. The position is well established that a court has inherent power to correct its own proceedings when it is satisfied that in passing a particular order it was misled by one of the parties. The principle was correctly discussed in the judg ment in Sadho Saran Rai and Others vs Anant Rai and Others, AIR 1923 Patna 483, pointing out the distinction in cases between fraud practised upon the court and fraud practised upon a party. Let us consider the cases in which consent decrees are challenged. If a party makes an application before the Court for setting aside the decree on the ground that he did not give his consent, the court has the power and duty to investigate the matter and to set aside the decree if it is satisfied that the consent as a fact was lacking and the court was induced to pass the decree on a fraudulent repre sentation made to it that the party had actually consented to it. However, if the case of the party challenging the decree is that he was in fact a party to the compromise petition filed in the case but his consent has been procured by fraud, the court cannot investigate the matter in the exercise of its inherent power, and the only remedy to the party is to institute a suit. It was succinctly summed up in the aforementioned case that the factum of the consent can be investigated in summary proceedings, but the reality of the consent cannot be so investigated. The principle has been followed in this country for more than a century. In Vilakathala Raman vs Vayalil Pachu, 27 Madras Law Jour 238 nal Reports 172, the trial court had vacated its previous order regarding satisfaction of decree on the ground that the same was obtained by the judgment debtor 's fraud on the court. The High Court, while confirming the order, said that in the exercise of inherent power under section 15 1 of the Code of Civil Procedure a court can vacate an order obtained by fraud on it. Reliance had been placed on an old decision of Bombay High Court of 1882 and a Madras decision of 1880. In Basangowda Hanmantgowda Patil and Others vs Churchigirigowda Yogangowda and Another, I.L.R. 34 Bombay 408, the defendant applied to the court to set aside a compromise decree on the ground that he had not engaged the lawyer claiming to be representing him and had not authorised him to compromise the suit. The court accepted his plea and ruled that it is the inherent power of every court to correct its own pro ceedings when it has been misled. Similar was the view of the Calcutta High Court in several decisions mentioned in Sadho Saran 's case (supra). The ratio has been later fol lowed in a string of decisions of several High Courts. The same principle applies where a suit is permitted to be withdrawn on the basis of a prayer purported to have been made on behalf of the plaintiff. The courts below were, therefore, not right in holding that the application of the appellant invoking the inherent jurisdiction of the court was not maintainable. If the appellant 's case is factually correct that Hari Narain Swami was not its elected secretary and was, therefore, not authorised to withdraw the suit, the prayer for withdrawing the suit was not made on behalf of the appellant at all and the impugned order was passed as a result of the court being misled. Such an order cannot bind the appellant and has to be vacated. The trial court was thus clearly wrong in dismissing the appellant 's application as not maintainable, and the High Court should have inter vened in its revisional power on the ground that the trial court had failed to exercise a jurisdiction vested in it by law. So far the finding of the trial court that Hari Narain Swami was not the elected Secretary of the appellant Society with authority to withdraw the suit is concerned, the same suffers from several errors and requires a recon sideration. Even in the view of the High Court that is the position, but it declind to exercise its revisional power on the assumption that it had no jurisdiction to do so. We, therefore, allow the appeal, set aside the impugned judg ments of the trial court and the High Court and r. emit the matter to the trial court for reconsideration of the case on merits. The parties shall be allowed to lead further evi dence in support of their cases. The costs will abide the final result in the litigation. G.N. Appeal allowed.

The Municipal Board, Jaunpur invited applications for the post of Tax Inspector. The employees working in the Revenue Department of the Municipal Board were eligible for consideration alongwith the outsiders. Respondent No. 3, the seniormost Tax Collector in Municipal Board, was called for interview but he refused to appear on the plea that the post of Tax Inspector should be exclusively filled by promotion and being the seniormost Tax Collector he should be promoted without considering any outsider. Ignoring his claim the Municipal Board selected and appointed the appellant to the post of Tax Inspector. Respondent No. 3 represented to the Commissioner challenging the appellant 's appointment. The Commissioner set aside the order of the Municipal Board and cancelled the appellant 's appointment holding that pursuant to the directions contained in the Government 's Order dated 10.4.50, Respondent No. 3 was entitled to promotion. The appellant challenged the Commissioner 's order before the High Court by filing a writ petition. Disagreeing with the decision of another Single Judge, a Single Judge of the High Court dismissed the writ petition, and affirmed the order of the Commissioner on the findings that the appellant 's ap pointment was made in violation of the Government 's Order dated 10.4.50. Hence this appeal. 202 Allowing the appeal and setting aside the order of the High Court, this Court, HELD: 1. The orders of the High Court and the Commis sioner are not sustainable in law. [208B] 1.1. It is a well settled principle of judicial disci pline that if a Single Judge disagrees with the decision of another Single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision. But in the instant case, the learned Single Judge of the High Court acted contrary to the well established principles of judi cial discipline in ignorning those decisions. [205B C] 2. Section 71 of the U.P. Municipalities Act, 1916 before its amendment in 1964 did not confer power on the State Government to issue any direction regulating the conditions of service of Municipal employees. [205D] Ramesher Prasad and Ors. vs Municipal Board, Pilibhit, A.I.R. 1958 All. 363; Ram Kripal Garg vs State of U.P., Writ Petition No. 4556 of 1965 dated 16.9.66 and Inder Bahadur vs Municipal Board, Mirzapur and Ors. , Writ petition No. 235 of 1970 dated 20.10.1972 approved. I Even after conceding supervisory power to the State Government to issue directions laying down conditions of service of Municipal employees, there are no directions in the Government Order dated 10 4 50 requiring a Municipal Board to fill the post of Tax Inspector only by promotion and not by direct recruitment. Therefore, it was open to the Municipal Board to make appointment to the post of Tax Inspector either by direct recruitment or by promotion. [205G; 207D] 2.2 In the instant case, the Municipal Board gave oppor tunity to its employees working in the revenue class of service to appear for selection in competition with outsid ers. Respondent No. 3 however did not avail the opportunity for which he himself is to be blamed. The Municipal Board acted within its jurisdiction in making appointment to the post of Tax Inspector by direct recruitment. [207E] 2.3 A Govt. Order declared ultra vires by the High Court, could not be revived by any subsequent Govt. Order without there being any statutory power for the same. [205E] 3. It is an elementary principle of natural justice that no person 203 should be condemned without hearing. The order of appoint ment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording an opportunity of hearing to him. Any order passed in violation of the principles of natural justice is rendered void. In the instant case, there is no dispute that the Commissioner 's order had been passed with out affording any opportunity of hearing to the appellant. Therefore the order was illegal and void. The High Court committed serious error in upholding the Commissioner 's order setting aside the appellant 's appointment without giving any notice or opportunity to him. [207G H; 208A]

Appeal No. 2376 of 1966. 355 356 Appeal from the judgment and order dated January 18, 1963 of the Madhya Pradesh High Court in Miscellaneous Petition NO. 267 of 1962. R.V.S. Mani, E.C. Agarwala and P.C. Agarwala,.for the appellant. B. Sen, M.N. Shroff for I.N. Shroff for the respondent. Shelat, J. Prior to December 17, 1947 the appellant was serving as an Overseer in the Public Works Department of the Central Provinces and Berar Government. On December 17, 1947 he was suspended from service and prosecuted under section .161 of the Penal Code. The trial resulted in his conviction but that was set aside in appeal on the ground that no proper sanction for prosecution was obtained. He was again prosecuted on the same charge but the Special Judge trying him quashed the chargesheet on the ground that the investigation had not been carried out by the proper authorities. In revision the High Court of Nagpur held that the Special Judge was in error in so holding but recommended that the prosecution should not be proceeded with as nearly 10 years had gone by since it was launched against the appellant. Following the recommendation the prosecution was dropped but a departmental inquiry was held on the same charges. The Inquiry Officer found the appellant not guilty but the Government disagreed with that finding and served a notice to show cause why he should not be dismissed. By an order dated December 5, 1960 the Government held that the charges against the appellant were not proved beyond reasonable doubt. It also held that the suspension and the departmental inquiry "were not wholly unjustified". The order then directed that the appellant should be reinstated in service with effect from the date of the order and retired from that, date, he having already attained superannuation age on September 5, 1952 and that the entire period of absence from duty should be treated as period spent on duty under F.R. 54(5) for purposes of pension only, but that he should not be allowed any pay beyond what he had actually received or what was allowed to him by way of subsistence allowance during the period of his suspension. On a representation made by him against the said order hav ing been rejected the appellant filed a petition under article 226 of the Constitution in the High Court of Madhya Pradesh for quashing the said order and for an order directing the Government to treat the period of absence from duty as period spent on duty under cl. 2 of the said Fundamental Rule and to revise the pension payable to him under that clause. The High Court dismissed the petition but granted certificate to file this appeal and that is how this appeal has come up before us. 357 Fundamental Rule 54 on the interpretation of which this appeal depends is as follows: "(1) When a Government servant who has been dismissed, removed or suspended is reinstated; the authority competent to order the reinstatement shall consider and make a specific order , (a) Regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty; and (b) whether or not the said period shall be treated as a period spent on duty , (2) Where the authority 'Mentioned in sub rule (1) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended as the case may be. (3)In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe. Provided that the payment of allowances under clause (2)or clause (3) shall be, subject to all other conditions under which such allowances are admissible. Provided other that such proportion of such pay and allowances ' all not be less than the subsistence and other allowances admissible under Rule 53. (4) In a case falling under clause (2), the period of absence from by shall be treated as a period spent on duty for all Purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty,unless such competent authority specifically directs that it shall be so treated for any specified purpose. Provided that if the Government servant so desired, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the, Government servant. " On behalf of the appellant two points were urged before the High Court; (1) that before passing the impugned order the appellant ought to have been given a reasonable opportunity to show cause against the action proposed and (2) that it was clause 2 and not clause 5 which applied to his case. The High Court rejected both the contentions and, as aforesaid, dismissed the petition. 358 Counsel for the appellant canvassed the same contentions before us. Mr. Sen on behalf of the State. however, argued that F.R. 54 does not in express terms lay down a duty on the part of the authority to give an opportunity to show cause to the government employee and therefore the question would be whether the Rule imposed such a duty by necessary implication. He urged that the Rule cannot be said to lay down such duty by implications inasmuch as the impugned order is only a consequential order. That it was passed following a departmental inquiry held against the appellant during the course of which opportunity to show cause was already afforded. He contended that the only duty laid down by FR. 54 was that the Government should, consider whether the appellant was fully exonerated and in case of suspension whether such suspension was wholly unjustified and that once the authority formed the opinion that it was not so cls. 3 and 5 would apply. The Government having formed the opinion that the suspension was not wholly unjustified clans 5 applied and the impugned order was not liable to be challenged. The first question which requires consideration is whether there was a duty on the competent authority to afford an opportunity to the appellant to show cause before that authority formed the opinion as to whether he was fully exonerated and whether his suspension was wholly unjustified. Under F.R. 54 where a Government servant is reinstated, the authority has to consider and make a specific order (i) regarding pay and allowances payable to him for the period of his absence from duty and (ii) whether such period of absence should be treated as one spent on duty. The consideration of these questions depends on whether on the facts and circumstances of the case the Government servant had been fully exonerated and in case of pension whether it was wholly unjustified. If the authority forms such an opinion the Government servant is entitled to full pay and allowances which he would have been entitled to had the order of dismissal, removal or suspension, as the case may be, not been passed. Where the authority cannot form such an opinion the Government servant may be given such proportion of pay an allowances as the authority may prescribe. In the former case the period of absence from duty has to be treated as period spent on duty for all purposes and in the latter case such period is not to be treated as period spent on duty. But the authority has the power in suitable cases to direct that such period of absence shall be treated as period spent on duty in which case the government servant would be entitled to full pay and allowances. It is true that the order under FR. 54 in a sense a con sequential order in that it would be passed aft an order of reinstatement is made. But the fact that it is a consequential order does not determine the question whether the government servant has to be given an opportunity to show cause or not. It is also true 359 that in. a case where reinstatement is ordered after a departmental inquiry the government servant would Ordinarily have had an opportunity, to show: cause. In such a case, the authority no doubt ,would have before him the entire record including the explanation given by the government servant from which all the facts and circumstances of the case would be before the authority and from which he can form the opinion as to whether he has been fully exonerated or not and in case of suspension whether such suspension was wholly unjustified or not. In such a case the order passed under a rule such as the present Fundamental Rule might be said to be a consquential order following a departmental inquiry. But there are, three classes of cases as laid down by the proviso in article 311 where a departmental inquiry would not be held, viz., (a) where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, (b) where the authority empowered. to dismiss or remove person or to reduce him in rank is satisfied for reasons to be record in writing that it is not reasonably practicable to hold such an inquiry; and (c) where the President or the Governor as the case may be is satisfied, that in the interest of security of the State it is not expedient to hold such inquiry. Since there would be no inquiry in these classes of cases the authority would not have before him any explanation by the ' government servant. The authority in such cages would have to consider and pass the ' order merely on such facts which might be placed before him by the department concerned. The order in such a case Would be ex parte without the authority having the other side of the picture. In such cases the order that such authority would pass would not be a consequential order as where a departmental inquiry has been held. Therefore, aft order passed under Fundamental Rule 45 is not always a consequential order nor is such order a continuation of the departmental proceeding taken against the employee. It is true as Mr. Sen pointed out that F.R. 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether the rule casts such a duty on the authority by implication. The order as to whether a given case falls under cl. 2 or cl. 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and. his forming the opinion therefrom of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the government servant adversely if it is one made under cls. 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function. 360 The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action, proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice. In the State of Orissa vs Dr. (Miss) Binapani Devi and others(1) this Court held that an order fixing the date of birth of the government servant concerned there and declaring that she should be deemed to have retired on a particular date on the basis of the date so determined without giving an opportunity to show cause against the action proposed was invalid on the ground that the determination was in violation of the principles of natural justice. It was there observed: "The State was undoubtedly not precluded, merely because of the acceptance of the date of birth of the first respondent in the service register, from holding an inquiry if there existed sufficient grounds for holding such enquiry and for refixing her date of birth. But the decision of the State could be based upon the result of an enquiry in a manner consonant with the basic concept of justice. An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his pre judice. " We find that the High Court of Maharashtra has also taken in V. R. Gokhale vs State of Maharashtra(2) the same view which we are inclined to take of the nature of function under R. 152 of the Bombay Civil Service Rules, 1959, a rule in terms identical to those of F.R. 54 before us. In our view, F.R. 54 contemplates a duty to act in accord ance with the basic concept of justice and fairplay. The authority therefore had to afford a reasonable opportunity to the appellant to show cause why cls. 3 and 5 should not be applied and that having not been done the order must be held to be invalid. (1) ; (2) I.L.R. 361 The appeal is allowed and the High Court 's order is set aside. The competent authority is directed to consider the question de novo after giving to the appellant a reasonable opportunity to show cause against the action proposed against him. The respondent will pay to the appellant costs of this appeal as also the costs of the petition in the petition in the High Court. G.C Appeal allowed.

The appellant was an Overseer in the Public Works Department of the Central Provinces and Berar Government. In 1947 he was suspended from service and prosecuted under section 161 I.P.C. Ultimately, on orders from the High Court, the prosecution was dropped. In a departmental enquiry also the appellant was exonerated, By an order dated December 1960, the Government held that the suspension of the appellant and the ' departmental enquiry against him "were not wholly unjustified". The order then directed that the appellant should be reinstated in service with effect from the date of the order and retired from the date, he, having already attained superannuation age on September 5, 1952 and that the entire period of absence from duty should be treated as period spent on duty under F.R. 54(5) for purposes of pension only, but that he should not be allowed any pay beyond what he had actually received or what was allowed to him, by way of subsistence allowance during the period of his suspension. The appellant filed a petition under article 226 of the Constitution contending that F. Rule 54(2) governed his case and not F. Rule 54(5). The High Court decided against him but granted him certificate to appeal to this Court. It was contended on behalf of the appellant that before deciding which rule applied to his case the Government should have given him an opportunity to be heard. The respondent urged that in passing a consequential order a hearing is not necessary. Held: An order passed under F R. 54 is not always a consequential order nor is such order necessarily a continuation of the departmental proceeding taken against the employee. [359E F] Consideration under F.R. 54 depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the Government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the pre sent case, the order is liable to be struck down as invalid on the ground that it was one in breach of the principles of natural justice. State of Orissa vs Dr. (Miss) Binapani Devi and Ors. ; , relied on. [359H; 360A B] V. R. Gokhale vs State of Maharashtra, I.L.R. [1963] Bom. 537, approved.

URISDICTION: Writ Peti tion Nos. 30(1 and 30 1 of 1986. ( Under Article 32 of the Constitution of India). WITH Criminal Appeal Nos. 374 A and 411 of 1986. From the Judgment and Order dated 31 3 1986 of the Allahabad High Court in W.P. Nos. 1448 and 1405 of 1986. A.K. Gupta for the Petitioners in W.P. Nos. 300 and 301 of 1986. S.A. Syed and Shakil Ahmed for the Appellants in Crl. A. Nos. 374A and 411 of 1986. A.D. Singh, Ms. Rachna Joshi and Dalveer Bhandari for the Respondents. The Judgment of the Court was delivered by PATHAK, C.J. I. The petitioners Fazal Ghosi and Wahid in the two writ petitions before us and the appellants Ayaz Ahmad and Riaz Ahmad in the two Criminal Appeals are ag grieved by the orders of detention made respectively in respect of them under sub s.(2) of section 3 of the . The petitioners Fazal Ghosi and Wahid filed writ petitions in the High Court of Allahabad against the detention orders concerning them and those writ peti tions were dismissed. They have now filed the present peti tions under Article 32 of the Constitution. The appellants Ayaz Ahmad and Riaz Ahmad filed writ petitions in the High Court of Allahabad against the detention orders concerning them, and those writ petitions having been dismissed they have appealed here by special leave. All the four cases have been heard together. It is agreed between the parties that although separate orders of detention were made under sub section (2) of section 3 of the against the various petitioners and appellants the grounds raised in this court against their detention orders are identical. It appears that consequent upon the opening of the Ram Janam Bhumi temple at Ayodhya, Faizabad, there was consider able agitation 473 among the Muslim community. According to the State Govern ment, several members of the community were returning from the mosque after their afternoon prayers, and at Bholanath Ka Kuan, Abdul Aziz Road, Lucknow they were addressed by Fazal Ghosi and his son Wahid in language inciting them to beat the police and the Police Armed Constabulary. At anoth er place, Sarkata Nala, a large number of the Muslim commu nity are said to have been similarly addressed by the appel lants, Ayaz Ahmd and Riaz Ahmad. It is alleged that in consequence the crowd commenced pelting stones and dis charged fire arms on the Government officials and the police personnel assembled there as a result of which they received injuries. The petitioners and the appellants were arrested along with other persons, and a First Information Report was lodged in respect of each of them for offences under sec tions 147/148/149/307 and 332 of the Indian Penal Code. The petitioners and the appellants applied for grant of bail, and while the bail applications were pending the District Magistrate, Lucknow, purporting to act under sub section (3) of section 3 of the , served a detention order on February 20, 1986 on each of the four detenus. This was followed on February 21, 1986 by service of the grounds of detention. Learned counsel for the detenus challenges the detention orders on several grounds. In our opinion, it is not neces sary to consider all the points raised because it appears to us that the cases can be disposed of on a short ground. The contention on behalf of the detenus is that there was no material before the District Magistrate on the basis of which he could form the opinion that the detenus would act in future in a manner prejudicial to the maintenance of public order. It is pointed out that the provides for preventive detention. and preventive deten tion is intended where it is apprehended that the person may act prejudicially to one or more of the considerations specified in the statute. There is no doubt that preventive detention is not intended as a punitive measure, as a cur tailment of liberty by way of punishment for an offence already committed. Section 3 of the Act clearly indicates that the power to detain thereunder can be exercised only with a view to preventing a person from acting in a manner which may prejudice any of the considerations set forth in the section. In the present case, we are unable to discover any material to show that the detenus would act in the future to the prejudice of the maintenance of public order. Even if it is accepted that they did address the assembly of persons and incited them to lawlessness there is no material to warrant the inference that they would repeat the miscon duct or do anything else which would be prejudicial to the maintenance of public order. The District Magistrate, it is true, has stated that the detention 474 of the detenus was effected because he was satisfied that it was necessary to prevent them from acting prejudicially to the maintenance of public order, but there is no reference to any material in support of that satisfaction. We are aware that the satisfaction of the District Magistrate is subjective in nature, but even subjective satisfaction must be based upon some pertinent material. We are concerned here not with the sufficiency of that material but with the existence of any relevant material at all. In the circumstances. the detention orders in respect of the four detenus must be quashed. The writ petitions and the appeals are allowed, the order of detention in respect of each detenu is quashed, and the detenus are entitled to be set at liberty unless their detention is required in connection with other cases. N.P.V. Petitions and appeals allowed.

The mortgagee decree holder in execution of the final decree for mortgage, himself purchased the disputed property in the auction sale held on July 14, 1978. On September 20, 1978 the judgment debtor, the predecessor in interest of the appellants, filed an application under Order XXI Rule 90 of the Code of Civil Procedure for setting aside the aforesaid sale. Two other petitions of objections were filed, one of these being by another judgment debtor. All these objections including the application under Order XXI Rule 90 of the Code of Civil Procedure were dismissed for default. Conse quently, the sale was confirmed by the District Judge, the executing Court on January 2, 1979. On July 17, 1980 more than one year after the sale was confirmed the decree holder auction purchaser filed an application under Order XXI Rule 95 of the Code of Civil Procedure for delivery of possession of the property auc tioned purchased by him. This application was opposed by the judgment debtor on the ground that as the application was filed more than one year after the confirmation of sale it was barred by limitation under Article 134 of the . The District Judge held that in view of Explanation II of Section 47 which was inserted in the Code of Civil Proce dure, by Section 20 of 356 the Code of Civil Procedure (Amendment) Act, 1974, Article 136 prescribing a period of limitation of 12 years for the execution of the decree and not Article 134 of the Limita tion Act would be applicable, and held that the application was not barred by limitation and directed issuance of the warrant of possession in respect of the disputed property. The judgment debtor filed a revision application under section 115 of the Code of Civil Procedure and a Single Judge of the High Court dismissed the revision application. The High Court held that after the insertion of Explanation II to Section 47 of the Cede of Civil Procedure, the pur chaser of property at a sale in execution of a decree would be deemed to be a party to the suit in which the decree was passed, and all questions relating to the delivery of pos session of the property to such purchaser of immovable property would be questions relating to the execution of the decree and, as such, Article 136 and not Article 134 of the would apply. It was also held after the amendment of the Code of Civil Procedure, Article 134 and Article 136 of the Limitation act became so inconsistent that both could not exist and that Article 134 stood im pliedly repealed by Section 47 of the Code of Civil Proce dure read with Article 136 of the . A certificate for appeal to this Court under Article 134A of the Constitution, was granted by the Single Judge. As the certificate on the basis of which the appeal was filed was not competent in view of clause III of Article 133, the appeal was treated as one under Article 136. After conclusion of the hearing, the parties settled the dispute, the respondent decree holder agreeing to relinquish all his rights as the auction purchaser upon the appellants paying an agreed amount. In spite of such settlement the Court felt the necessity of laying down the correct legal position. Setting aside the judgment of the Single Judge of the High Court and that of the District Court, HELD: 1. Article 134 of the would apply to an application under Order XXI Rule 95 of the Code of Civil Procedure by the auction purchaser for delivery of possession of the property sold in execution of a decree. [363G] 357 2. The Single Judge of the High Court has misunderstood the scope of the provision of section 47 of the Code of Civil Procedure and that of the provisions of Articles 134 and 136 of the . It may be that before the amendment of section 47, an auction purchaser could file a suit for recovery of the possession of the property within 12 years from the date of the sale, but in view of the amendment of Section 47 of the Code such a suit cannot be filed. But that is no ground for holding that Article 136 of the would apply to an application for deliv ery of possession. [363C D] 3. It is for the Legislature to prescribe the period of Limitation, and the Court is only to see whether any partic ular application has been filed within that period. [363F] 4. When a property is sold in execution of a decree an application for setting aside the sale may be made under Rule 89, 90 or 91 of Order XXI of the Code of Civil Proce dure by the persons and on the ground mentioned therein. Such an application has also to be made within the pre scribed period of limitation of 60 days from the date of the sale under Article 127 of the . Article 134 prescribes a limitation of one year for an application for delivery of possession by a purchaser of immovable property at a sale in execution of a decree. The limitation of one year will be computed from the date the sale becomes absolute. Such an application for delivery of possession can be filed only after the decree is put into execution within the period of limitation as prescribed by Article 136 of the . [362B D] 5. The period of limitation prescribed by Articles 136 and 134 are for two different purposes, the former being for the execution of a decree for possession in respect of which the decree is passed, and the latter for an application for delivery of possession of immovable property which is pur chased in the course of execution of a decree. The two articles have nothing in common for their operation. They do not stand in conflict with each other. [362D E] 6. The scope of Articles 134 and 136 and the subject matter being completely different, the question of implied repeal of Article 134, does not at all arise. [363F] 7. Merely because Explanation II to Section 47 CPC was inserted by the C.P.C. (Amendment) Act 1976, an application for delivery of possession under Order XXI Rule 95 C.P.C. cannot be equated with an application for the execution of a decree for possession so as to apply 12 358 years period of limitation as prescribed by Article 136 of the Limitation Act.[362F G] 8. An application for delivery of possession of immova ble property purchased in execution cannot, by any stretch of imagination, be construed as an application for execution of a decree for possession of property so as to invoke the provision of Article 136 of the . [362E] 9. After a sale becomes absolute on the dismissal of the application of the judgment debtor 's claim for setting aside the sale, another application for setting aside the sale by the judgment debtor is not maintainable and the period of limitation as prescribed by Article 134 of the cannot be computed from the date of the dismissal of the second application for setting aside the sale. [366H; 367A] 10. In the instant case, on January 2, 1979 while dis missing the application of the judgment debtor under Order XXI Rule 90 the District Judge confirmed the sale. The said order confirming the sale is binding not only on the judg ment debtor, who made the application under Order XX1 Rule 90, but also on all other parties to the execution proceed ings including the 4th judgment debtor. Accordingly, there can be no doubt that the application filed by the 4th judg ment debtor praying for setting aside of the sale on grounds other than those mentioned in Rules 89 to 91 was not main tainable after the confirmation of the sale. By the order dated July 21, 1979 the District Judge while dismissing the application of the judgment debtor observed that after the confirmation of the sale the Court was not authorised to entertain the application. The application of the judgment debtor not being maintainable in law, the respondent decree holder was not entitled to compute the period of one year under Article 134 of the from the date of dismissal of the second application by the 4th judgment debtor. [365C E; 368B] Chandra Mani Sahai & Ors. vs Anarjan Bibi & Ors., AIR 1934 PC 134 Kamakshi Ammal & Anr. vs Arukkani Ammal & Ors., AIR 1957 Madras 440 explained and distinguished.

tition Nos. 66/1974 & 4146/1978. (Under Article 32 of the Constitution) V. M. Tarkunde, J. N. Haldar, Rathin Dass and A. K. Sanghi, for the Petitioners in WP 66/74. Dr. Y. section Chitale, Mukul Mudgal and B. R. Aggarwal for the Petitioners in WP No. 4146/78. section N. Kackar, Sol. R. N. Sachthey, E. C. Agarwala and Miss A. Subhashini for RR 1 3 in WP 66 and RR 1 2 in WP 4146. Ram Panjwani, Raj Panjwani, section K. Bagga and Mrs. 5. Bagga for R. 4 in WP 4146 and Intervener (Gujjar Mal.). Ram Panjwani, Bishamber Lal, Raj Panjwani and Vijay Panjwani for the R.6 in WP No. 4146 and R,358 in WP 66. Yogeshwar Prasad and Mrs. Rani Chhabra for the R. 7 in WP 4146. A. K Sanghi for the Interveners (Hari Narain and L. section Chakravarty). The Judgment of Y. V. Chandrachud, C.J., N. L. Untwalia, P. section Kailasam and E. section Venkataramiah, JJ. was delivered by Chandrachud, C.J. D. A. Desai, J. gave a dissenting opinion. CHANDRACHUD, C. J. The disputes between promotees and direct recruits in various departments of the Government seem to have no end. No sooner does one round of litigation come to a decision than is another round started by one party or the other, sometimes alleging, as in these Writ Petitions, that important facts and circumstances were not taken into consideration in the earlier proceedings either because they were suppressed or because, though cited, they were overlooked or misunderstood. A virtual review is thus asked for, opening flood 823 gates to fresh litigation. There are few other litigative areas than disputes between members of various services inter se, where the principle that public policy requires that all litigation must have an end can apply with greater force. Public servants ought not to be driven or required to dissipate their time and energy in court room battles. Thereby their attention is diverted from public to private affairs and their inter se disputes affect their sense of oneness without which no n institution can function effectively. The constitution of Service Tribunals by State Governments with an apex Tribunal at the Centre, which, in the generality of cases, should be the final arbiter of controversies relating to conditions of service, including the vexed question of seniority, may save the courts from the avalanche of writ petitions and appeals in service matter . The proceedings of such Tribunals can have the merit of informality and if they will not be tied down to strict rules of evidence, they might be able to produce solutions which will satisfy many and displease only a few. There are always a few whom nothing can please. The three petitioners in Writ Petition No. 66 of 1974 are all promotees. Petitioner No. 1, Kamal Kanti Dutta, was appointed as an Inspector of Income tax on December, 7, 1950 and after passing the departmental examination he was promoted an Income tax officer, Class II on June 21, 1954. On January 1, 1966 he was promoted as Income tax officer, Class I, which post he was holding on the date of the petition, February 8, 1974. Petitioners 2 and 3, Bikash Mohan Das Gupta and Sushil Ranjan Das, were promoted as Inspectors of Income tax in April, 1955. The former was promoted as I.T.O., Class II in December, 1957 and as I.T.o., Class I, in May, 1971 while the latter was promoted as I.T.o., Class II, in August, 1973. Respondents 1 to 5 to the petition are the Union of India, Secretary to the Ministry of Finance, the Central Board of Direct Taxes, Secretary to the Ministry of Home Affairs and the Union Public Service Commission respectively. Respondents 6 to 357 who were recruited directly as I.T.Os., Class I, were appointed on probation as Class I officers after Petitioner No. 1 was promoted to that cadre on January, 1, 1966. Respondents 280 to 357 were appointed on probation as I.T.os., Class I, after Petitioner No. 2 was promoted to that cadre in May 1971. Respondent No. 358, section G. Jaisinghani, who was recruited directly as I.T.O., Class I, in 1951 was holding the rank of Assistant Commissioner of Income tax on the date of the petition. He was posted at the relevant time as the Deputy Director of Investigation, New Delhi. Respondent 359, Mohan Chandra Joshi, who was recruited directly as I.T.O., Class L in 1953 was also holding a similar rank and was 824 working as Deputy Secretary, Ministry of Defence, Government of India. In Writ Petition No. 4146 of 1978 the Petitioner, Hundraj Kanyalal Sajnani, was appointed directly on the recommendation of the Union Public Service Commission as I.T.o., Class II (Trainee) on July 1, 1947. After successfully completing the period of probation, he passed the departmental examination for I.T.Os. in July 1950. In 1959 60 he was promoted as I.T.O., Class I, and was confirmed in that cadre with effect from December 9, 1960. He was promoted as an Assistant Commissioner of Income tax with effect from December 17, 1969. Respondents 1 to 3 to that petition are the Union of India, the Chairman of the Central Board of Direct Taxes and the Union Public Service Commission respectively. Respondents 4 to 8 are B. D. Roy, section G. Jaisinghani, M. C. Joshi, B. section Gupta and M. Jangamayya respectively. These officers have figured in certain well known decisions of this Court, as a result of which their names have become house hold words in service jurisprudence. In fact, Shri B. section Gupta figures in two cause titles known as 'the first Gupta case ' and the 'Second Gupta case '. Respondents 4, 7 and 8 are Assistant Commissioners of Income tax while respondents 5 and 6 are workings Deputy Directors of Investigation. It will be difficult to appreciate the nature of the relief sought in these Writ Petitions without a proper understanding of the history of the litigation leading to these petitions. That history is quite checkered. one of the principal grievances of the petitioners is that some of the previous decisions rendered by this Court are erroneous and that some have not been properly understood and interpreted while framing rules of seniority. That makes it necessary to refer to the previous proceedings leading to the present controversy. With a view to improving the income tax administration, the Government of India, in consultation with the Federal Public Service Commission, decided to reconstitute and classify the then existing Income tax Services, Classes I and II. The scheme of reorganisation of the Services was set out in a letter dated September 29, 1944 of the Government of India, Finance Department (Central Revenues), which was sent to all the Commissioners of Income tax. The Central Service, Class I was to consist of (1) Commissioners of Income tax, (2) Assistant Commissioners of Income tax, (3) Income tax officers, Grade I and (4) Income tax officers, Grade II. The Central Service, Class II comprised Income tax officers, Grade III. Thus Income tax officers, Class I were to be of two grades, Grades I and II, while Income tax 825 Officers, Class II, were to consist of one grade, namely, Grade Ill. A Clauses (a) to (e) of paragraph 2 of the aforesaid letter prescribed modes of recruitment to the various posts in Class I and Class II. Clause (d) which prescribed the mode of recruitment to the post of Income tax officer, Class I, Grade II, said: Recruitment to Grade II will be made partly by promotion and partly by direct recruitment. 80 per cent of the vacancies arising in this Grade will be filled by direct recruitment via the Indian Audit & Accounts and Allied Service Examination. The remaining 20 per cent of vacancies will be filled by pro motion on the basis of selection from Grade III (Class II Ser vice), provided that suitable men upto the number required are available for appointment. Any surplus vacancies which cannot be filled by promotion for want of suitable candidates will be added to the quota of vacancies to be filled by direct recruitment via the Indian Audit and Accounts etc. Services examination. Rules regulating recruitment to the Income tax officers (Class I, Grade II) Service, "liable to alteration from year to year", were published on May 26, 1945 by a resolution of the Finance Department (Central Revenues). Rule 3 provided that recruitment to Class I, Grade II Service shall be made (i) by competitive examination held in India in accordance with Part II of the Rules and (ii) by promotion on the basis of selection from Grade III (Class II Service) in accordance with Part III of the Rules. By rule 4, the Government was to determine, subject to the provisions of rule 3, the method or methods to be employed for the purpose of filling any particular vacancies, or such vacancies as may require to be filled during any particular period, and the number of candidates to be recruited by each method. Part III of the Rules called 'Recruitment by Promotion ' provided by paragraph 21 that recruitment by promotion shall be made by selection from among Grade I II Income tax officers (Class II Service) after consultation with the Federal Public Service Commission and that no officer shall have any claim to such promotion as of right. By a letter dated January 24, 1950 the Government of India laid down certain rules of seniority (a) as between direct recruits, (b) as between promotees selected from Class II, and (c) as between direct recruits who completed their probation in a given year and the promotees appointed in the same year to Class I. On October 18, 1951, the Government of India addressed a letter to all the Commissioners of Income tax on the subject Income tax officers, 14 463 SCI/80 826 Grade II (Class I Service) quota of vacancies filled by promotion . The letter says: The Government of India have had under consideration the question of increasing the proportion of vacancies reserved for promotion from Class II Income tax officers in Class I. It has been decided in consultation with the Union Public Service Commission and in modification of para 2(d) of the Finance Dept. (Central Revenues) letter No. 195 Admn. (IT/39 dated the 29th September, 1944 that for a period of five years in the first instance 66/2 3 % of the vacancies in Class I, Grade II, will be filled by direct recruitment via combined competitive examination and the remaining 33% by promotion on the basis of selection from Grade III (Class II Service). Any surplus vacancies which cannot be filled by promotion for want of suitable candidates will be added to the quota of vacancies to be tilled by direct recruitment. By a letter dated September S, 1952, the Government of India revised with retrospective effect the rules of seniority which were laid down on January 24, 1950. Rule l(f)(iii) as framed on January 24, 1950 read thus: The promotees who have been certified by the Commission in any calendar year shall be senior to all direct recruits who complete their probation during that year or after and are confirmed with effect from a date in that year or after. The rule as revised on September 5, 1952 read thus: Officers promoted in accordance with the recommendation of the Departmental Promotion Committee before the next meeting of the Departmental Promotion Committee shall be senior to all direct recruits appointed on the results of the examinations held by the Union Public Service Commission during the calendar year in which the Departmental Promotion. Committee met and the three previous years. Rule l(f)(iv) of the 1952 Rules dealt with a special situation in which an officer initially appointed to Class II service is given seniority in the same manner as a departmental promotee, if subsequent to his passing the departmental examination he is appointed in Class I on the results of the competitive examination. Rule 4 of Chapter IX of the "Rules of Promotion of the Central Board of Revenue office Procedure Manual states, that the prescribed 827 minimum service for an officer of Class I, Grade II for promotion to A Grade I is 5 years gazetted service including 1 year in Class l, Grade II. For a promotee from Class II, the minimum period of service for promotion to Class I, Grade I, would be actually 4 years service in Class II and 1 year service in Class I, Grade II. In 1962, section G. Jaisinghani (who is respondent No. 358 in Writ Petition No. 66 of 1974 and respondent No. S in Writ Petition No. 4146 of 1978) filed Civil Writ No. 189 D of 1962 in the High Court of Punjab under Article 226 of the Constitution, challenging the validity of the seniority rules in regard to Income tax Service, Class I, Grade II as also the actual implementation of the 'quota ' rule, as infringing Articles 14 and 16(1) of the Constitution. Promotees who were likely to be affected by the decision of the Writ Petition were added as respondents 4 to 126 to that Petition. Jaisinghani who was recruited directly as an Income tax officer, Class I (Grade II), raised four principal contentions: (i) Rule l(f)(iii) of the seniority rules as framed in 1952 was based upon an unjustifiable classification between direct recruits and promotees after they had entered Class I, Grade II Service. On the basis of that classification, promotees were given seniority over direct recruits of the same year and with weightage of three previous years. All officers appointed to Class I, Grade II Service formed one class and after being recruited to that class, no distinction could be made between direct recruits and promotees. (ii) Rule 1(f)(iv) was discriminatory because though the petitioner, Jaisinghani, qualified in the same competitive examination of 1950 for appointment to Class I, Grade II Service as respondents 4, 5 and 6 to that petition, they were treated as senior to him by the operation of the artificial rule by which they were regarded as "deemed promotees", since they were appointed to Class II, Grade III Service in 1947. All the four of them were appointed to Class I, Grade II Service in 1951 and therefore the period of service put in by respondents 4, 5 and 6 in Class II, Grade III Service cannot be counted for fixing their seniority vis a vis the petitioner. (iii) Rule 4 of Chapter IX of the 'Central Board of Revenue office Procedure Manual ' leads to discrimination as between direct recruits and promotees; and that 828 (iv) during the years 1951 to 1956, there was excessive recruitment of 71 promotees, in violation of the quota rule of 2: 1 contained in Government of India 's letter dated October 18, 1951. The quota fixed by that letter must be deemed to have been fixed in exercise of the statutory power given by rule 4 of the Income tax officers (Class I, Grade II) Service Recruitment Rules published on May 26, 1945. A full Bench of the Punjab High Court, Circuit Bench, Delhi, rejected the writ petition, holding that the principles for determining seniority between direct recruits and promotees laid down in rules 1(f) (iii) and (iv), 1952 were not discriminatory, that the quota rule announced by the Government of India were merely a policy statement and had no statutory force, that departure from the quota rule did not give rise to any justiciable issue and that the promotion rule governing promotions from Class I, Grade II to Class I, Grade I was not discriminatory and ultra vires of Articles 14 and 16 of the Constitution. In appeal, a Constitution Bench of this Court held that rules l(f)(iii) and (iv) of the seniority rules framed in 1952 did not violate Articles 14 and 16 since they were based on a reasonable classification and that rule 4 of Chapter IX of the 'Central Board of Revenue office Procedure Manual ' cannot be held to lead to any discrimination as between direct recruits and promotees, since the object of the rule was really to carry out the policy of rule l(f)(iii) of the Rules of Seniority and not allow it to be defeated by the requirement of five years service in Class I, Grade II itself, before a person could be considered for promotion to Class I, Grade I. On the question of excessive recruitment of promotees from 1951 to 1956 in violation of quota rule, the Court had directed the Secretary of the Finance Ministry, during the hearing of the appeal, to furnish information regarding the number of vacancies which had arisen from year to year from 1945 onwards, the nature of the vacancies permanent or temporary the chain of vacancies and such other details which were relevant to the matters pending before the Court. In his affidavit dated January 31, 1967 Shri R. C. Dutt, Finance Secretary, said that he was not able to work out, in spite of his best endeavours, the number of vacancies arising in a particular year. However, a statement, exhibit E. was furnished to the Court showing the number of officers recruited by the two methods of recruitment to Class I Service during the relevant years. The Court found that it was not clear from Shri Dutt 's affidavit whether the quota rule was followed strictly for the years in question and noted that in the absence of figures of permanent vacancies in Class 1, Grade II, for the relevant years, the Solicitor General was unable to say to what extent 829 there had been deviation from that rule. Rejecting the submission of the Solicitor General that the quota rule was merely an administrative direction, the Court held that rule 4 of the Income tax officers Class I, Grade II) Service Recruitment Rules was a statutory rule under which a statutory duty was cast on the Government to determine the method or methods to be employed for the purpose of filling the vacancies and the number of candidates to be recruited by each method; and that, though in the letter of the Government of India dated October 18, 1951 there was no specific reference to rule 4, the quota fixed by that letter must be deemed to have been fixed in exercise of the statutory power given by rule 4. There was therefore no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure. The quota rule, according to the Court, was linked up with the seniority rules and unless it was strictly observed in practice it would be difficult to hold that the seniority rule contained in rule l(f)(iii) was not unreasonable and did not offend Article 16 of the Constitution. The Court expressed its conclusion thus: D We are accordingly of the opinion that promotees from Class II, Grade III to Class I, Grade II Service in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents ' I to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24(2) Admn. I.T./51 dated October 18, 1951. We, however, wish to make it clear that this order will not affect such Class II officers who have been appointed permanently as Assistant Commissioners of Income Tax. (emphasis supplied). The Court suggested that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method of recruitment. In Writ Petition No. S of 1966 filed by Mohan Chandra Joshi under Article 32 of the Constitution, a similar mandamus was issued by the Court. Mohan Chandra Joshi, like Jaisinghani, was recruited directly 830 as Income tax officer, Class I, Grade II, with the only difference that he was appointed in 1953 while Jaisinghani was appointed in 1951. Thus the direct recruits succeeded substantially in their contentions. the quota rule acquired statutory force, appointments of promotees in excess of the quota became bad and it became obligatory for the Government to prepare a fresh seniority list. Promotees found to have been appointed in excess of the quota admissible to promotees had naturally to go down lin the final gradation of seniority. The aforesaid decision was given by this Court on February 2, 1967. But, in spite of the mandamus issued by it, Government did not prepare a fresh seniority list for over a year, which led to the filing of a contempt petition by Jaisinghani and Joshi. Those proceedings were dismissed by this Court on November 6, 1968. In the meanwhile on July 15, 1968, the Government prepared a fresh seniority list and filed it in this Court. That list failed to satisfy promotees as well as direct recruits. Two writ petitions were filed in the Delhi High Court to challenge the fresh seniority list: one by B. section Gupta, a promotee of 1962 and the other by M. C. Joshi, a direct recruit who had succeeded in the earlier round of litigation in this Court. These writ petitions were heard by two separate Benches of the Delhi High Court. Writ Petition No. 196 of 1970 filed by B. section Gupta was dismissed whereas Writ Petition No. 550 of 1970 filed by M. C. Joshi was substantially allowed. Setting aside the seniority list, the High Court gave a direction that another seniority list be prepared in the light of its judgment. The decision of the Delhi High Court in the aforesaid two writ petitions was challenged in this Court in four appeals: one by B. section Gupta against the dismissal of his writ petition and the other three by (i) the Government, (ii) M. C. Joshi and (iii) S promotees. In all these appeals, the only question or consideration was whether the seniority list prepared on July 15, 1968 was correct and in accordance with the mandamus issued by this Court in Jaisinghani vs Union of India and Ors.(1). These appeals were heard together and were disposed of by a judgment dated August 16, 1972 which is reported in Bishan Sarup Gupta vs Union of India and Ors.(2). While preparing the seniority list the Government understood the mandamus issued in Jaisinghani(l) as covering the entire period from 1951 to 1967. For doing that it could not be blamed, since the mandamus issued in Jaisinghani(1) directed the Government to adjust the 831 seniority of various officers for the period 1951 to 1956 "and onwards", A though the argument regarding excessive recruitment of the promotees was confined to the years 1951 to 1956. Palekar, J. speaking for the Court in Bishan Sarup Gupta (Supra) observed in the first instance that this Court could not possibly have in mind a seniority list which took in promotees after 1956 and that therefore under the mandamus issued by this Court, appointments of promotees in excess of the quota could only be taken into consideration in relation to the period 1951 to 1956. The reason for the use of the words "and onwards" was explained to be that Government should be able to push down excess promotions to later years in order that such promotions could be absorbed in the lawful quota available for later years. C In Bishan Sarup Gupta the Court was called upon to examine the correctness of seven principles enumerated in the Government letter dated July 15, 1968 governing seniority. The first principle was accepted as good. The second and the third principles were held to be partially incorrect in so far as they excluded reference to all the promotees of 1952. The Court held that the promotees of 1952 should be referred to in the seniority list whether they are affected or not, the object being the ascertainment of excess promotions. The fourth principle set out in the letter of July 15, 1968 which is important for our purpose reads thus: E In view of the difficulty in working out the vacancies arising in each year the total number of direct recruits and promotees in each year have been taken into account for the purpose of implementing the quota rule. This Court held that the rule dated October 18, 1951 was not concerned with the constitution of the cadre but "was concerned with how permanent vacancies were to be filled" and therefore the promotees would be entitled to 1/3 of the vacancies in any particular year whether or not there was direct recruitment by competitive examination in that year. This ratio of 2: 1 between the direct recruits and the promotees could not be made to depend on whether any direct recruits were appointed in any particular year. It therefore became essential to determine the actual vacancies in the cadre but even in B. section Gupta the Government put forward the plea that it was impossible for them to give the exact figure of vacancies in any particular year. Counsel 11 who appeared for the promotees in that case filed a chart marked Annexure 1 which, according to him, showed the correct number of 832 vacancies in the particular years. The Court, however, found it impossible to determine the actual vacancies on the basis of the figures given in that chart. In the circumstances, the Court considered it reasonable to accept the number of appointments made in the particular years as substantially representing the actual vacancies available for being filled up. One of the reasons which the Court gave in support of this conclusion was that when the quota rule referred to vacancies, it was implicit that the vacancies are those which the Government wanted to fill up, whatever may be the actual number of vacancies available for being filled up. Thus, if in the year 1953, 53 posts were filled by direct recruits and 38 by promotees, the total number of vacancies which were intended by the Government to be filled in would be 91. Promotees would be entitled to hold 1/3 of these namely, 30. 8 promotees therefore could be said to have been appointed in excess of the quota available for promotees. This was in fact what the Government had done while preparing the fresh seniority list, though it had wrongly calculated the vacancies with effect from the year 1953 instead of doing so w.e.f. the beginning of the year 1952. There were no promotions in 1951 and therefore, the question of appointment of promotees in excess of their quota did not arise for that year. The argument advanced on behalf of the direct recruits that the quota rule should be co related to vacancies in permanent posts only and not to those in temporary posts was rejected by the Court. The Court upheld the 5th principle under which Class II officers promoted to Class I, Grade II, were allowed weightage under rule 1(f)(iii). The Court then considered the question whether the quota rule could be applied after the year 1956. It held that even after 1956, the Government was entitled by reason of rule 4 of the Recruitment Rules of 1945 to follow the quota rule of 1951 as a rough guideline, "without going to the trouble of putting the same on record in so many words". The Court observed that if the rule is followed as a guideline, a slight deviation from the quota would be permissible but if there was an "enormous deviation", other considerations may arise. Taking into consideration the relevant circumstances, the Court came to the conclusion that in the normal course the Government was entitled to prepare the seniority list till the end of 1958 in accordance with the quota rule of 1951. In regard to the position after the year 1958, the Court came to the conclusion that the quota rule ceased to apply and came to an end on January 16, 1959 when the sanction to upgrade 100 temporary posts in 833 class II, grade III to class I, grade II was given by the President. The seniority rule then fell with the quota rule. On these considerations it was held that the seniority list was valid in regard to promotions made upto January 15, 1959 to the extent that it was prepared on the basis of the quota rule dated October 18, 1951 read with the seniority rule 1(f) (iii). This position made it necessary for the Court to consider as to how the inter seniority between the direct recruits and the promotes was to be fixed after January 16, 1959, if the seniority rule l(f)(iii) ceased to be operative from that date. Several suggestions were made to the Court with a view to evolving a fair and just seniority rule. The Court declined to be drawn into any such exercise and preferred to leave it to the Government to devise a fair and just seniority rule, if necessary, in consultation with the U.P.S.C. As a corollary, the Court set aside the seniority list of July 15, 1968 and directed the Government to prepare a fresh seniority list. The list for the years 1955 to January 15, 1959 was directed to be prepared in accordance with the quota rule of 1951 read with seniority rule l(f)(iii). The list to be effective from January 16. 1959 was directed to be prepared in accordance with rules to be made afresh by the Government. Principles (6) and (7) did not survive for consideration separately in view of the position mentioned above. E The Court kept the proceedings pending on its file to enable the Government to prepare a fresh seniority list in the light of the directions given by it within six months from the date of the order. Liberty was given to the parties to apply to the Court after the list was filed. The judgment in B.S. Gupta (supra) was given on August 16, 1972. On February 9, 1973, the President made rules called the Income tax (Class 1) Service (Regulation of Seniority) Rules, 1973. These Rules were made under Article 309 of the Constitution and were given retrospective effect from January 16, 1959. In pursuance of the liberty reserved to the parties under the judgment in B.S. Gupta, the validity of the new Seniority Rules was challenged by the promotes. That challenge was considered and repelled by this Court in Bishan Sarup Gupta etc. vs Union of India & ors. ,(l) the 2nd Gupta case. Rule 3 of the new Seniority Rules of 1973 reads thus: "3. Seniority of officers The seniority of the Income tax officers in the Class I service shall be regulated as from the 834 date of commencement of these rules in accordance with the provisions hereinafter contained namely: (i) the seniority among the promotes inter se shall be deter mined in the order of selection for such promotion and the officers promoted as a result of any earlier selection shall rank senior to those selected as a result of any subsequent selection; (ii) the seniority among the direct recruits inter se shall be deter mined by the order of merit in which they are selected for such appointment by the Union Public Service Commission and any person appointed as a result of an earlier select ion shall rank senior to all other persons appointed as a result of any subsequent selection; and (iii) the relative seniority among the promotes and the direct recruits shall be in the ratio of 1: 1 and the same shall be so determined and regulated in accordance with a roster maintained for the purpose, which shall follow the following sequence, namely: (a) promote; (b) direct recruit; (c) promote; (d) direct recruit; and so on When the new list of seniority was prepared by the Government in accordance with these rules, the Government had on its hands 73 promotes who, though appointed earlier between 1956 and 1958, had no quota posts for their absorption. The 73 promotes, described as "spillovers on January 16, 1959" as also those who were promoted subsequently had to be absorbed in the Service, which could only be done by a special rule framed in that behalf. The method adopted in the preparation of this list was, according to Palekar, J., who spoke again for the Constitution Bench in the 2nd Gupta case, "simple enough", though the wording of the rule "19 not happy". The simple method adopted by the Government was like this: The seniority list from serial No. 1 to serial No. 485 relating to the period from 1951 to January 16, 1959 was prepared in accordance with the quota rule read with the seniority rule which prevailed until January 16, 1959. At serial numbers 486 to 1717 are officers who had to be accommodated from January 16, 1959 in accordance with the new seniority rules. Since under rule 3 (iii), the first post in the roster has to go to a promote and the next to a direct recruit 835 serial No. 486 goes to a promote, serial No. 487 to a direct recruit A. and so on. Promotes whose ranking is below serial No. 485 are either out of the 73 spillovers as on January 1959, or are those who were appointed later. Thus, the new seniority rule contains a formula for the absorption of all Promotes with effect from January 16, 1959 in posts allocated to them, it determines their seniority inter se and last but not the least, it determines their seniority qua the direct recruits appointed from 1959. The Court over ruled the objection of the 73 spillover Promotes that since, in the Ist Gupta case, the Court had directed that they should be absorbed on a "priority basis", all of them should have been shown in the seniority list as having been appointed on January 16, 1959 embolic and the direct recruits for that year should have been shown thereafter. It was explained that by the use of the expression "priority basis", what was meant by the Court was that the position of the spillover promotes as seniors should not be prejudiced by claims made by later promotes on the ground that since the spillover promotes were recruited in excess of the quota, the later promotes whose promotion did not violate the quota rule had higher rights than those 73. The principal contention of the promotes in the 2nd GPA case was this: As the quota rule collapsed on January 16, 1959 the spillover promotes as also those who were promoted thereafter must be deemed to have been validly appointed in accordance with rule 4 of the Recruitment Rules of 1945. Since there was no seniority or quota rule in existence for determining the seniority of promotes Que the direct recruits, the natural seniority linked with the earlier date of appointment must be respected. lt could not be altered to the detriment of the promotes since to do so would violate Article 16 of the Constitution. This contention was rejected by the Court on the ground That when the 73 spillover appointments were made, there were no allocated or earmarked posts to which those promotes could have been validly appointed, the ordinary consequence of which would have been their reversion to Class II posts which they originally held. So long as the quota rule was in existence, appointments in excess of the quota, though invalid when made, were at least liable to be regularized in subsequent years when vacancies were available to the promotes as a consequence of the quota rule. But once the quota rule ceased to exist on January 16, 1959, any possibility of the excess appointments of the promotes being regularized vanished. It was in order to overcome this injustice to the promotes, that the new rule was framed by the Government. The new rule was thus not only the direct outcome of the judgment of the Court in the 1st Gupta case, 836 but it was founded on the very principles on which the Income tax Service had been constituted. The Court finally said that it had also to be remembered that promotes appointed from January 16, 1959 onwards were appointed on an officiating or ad hoc basis with notice that the question of their seniority was still undecided. This circumstance, coupled with the absence of clear allocations of posts, made it impossible for the promotes to lay claim to seniority and contend that they were deprived of their natural seniority in violation of Article 16. Shri V.M. Tarkunde who appears on behalf of the petitioners in Writ Petition No. 66 of 1974 has made a fresh challenge to the new seniority list prepared in pursuance of the rules dated February 9, 1973 the validity of which was upheld by this Court in the 2nd Gupta case (Supra). According to the learned counsel, the decision in Jaisinghani. (Supra) suffers from the following three infirmities: (i) It was assumed in that case that the appointments of promotes were in excess of the quota available to them because the relevant files were not made available to the Court, nor indeed was the necessary data placed before the Court, even though during the hearing of the appeal the Court had asked the Secretary of the Finance Ministry to furnish information in that behalf. In the absence of such information, the Court made an assumption which was unjustified, that the total number of vacancies available for promotes was equal to the total number of appointments actually made. If, for example, 10 direct recruits and 20 promotes are appointed in a particular year it cannot be assumed either that only 30 vacancies are available for being filled up in that year or that only 30 appointments are intended to be made by the Government during that year. The proper inference for the Court to draw, in the absence of material which ought to have been produced by the Government, was that if appointments were to be made of direct recruits and promotes in the proportion of 2: 1, and if 20 promotes were in fact appointed, the Government desired to appoint 40 direct recruits but could only appoint 10, probably because of the non availability of suitable candidates for direct recruitment. (ii) It was wrongly assumed or held that rule 4 of the Income tax officers (Class I. Grade ll) Service Recruitment Rules was a statutory rule. 837 (iii) lt was wrongly assumed that 100 posts in Class 11, Grade III, and 114 posts in the same cadre which were upgraded as Class I, Grade II posts on January 16, 1959 and December 9, 1960 respectively were exclusively allotted to promotes and were in fact filled in by the appointment of promotes. In regard to the decision in the 2nd Gupta case (Supra) it is contended that the decision suffers from the following infirmities: (i) It was wrongly held therein that the 73 spillover promotes as on January 16, 1959 could not be given priority en bloc, even though it was directed in the judgment in the 1st Gupta Case (supra) that they should be dealt with on a "priority basis". (ii) It was wrongly held that 214 promotes were appointed in excess of the quota available to the promotes. (iii) The conclusion that no distinction can be made between promotes and direct recruits once they belong to a com mon cadre was erroneous, as a result of which the promotes were unjustly deprived of their right to weightage. (iv) The provision in rule 3 (iii) of the new Rules of seniority of 1973 that direct recruits and promotes will be appointed in the ratio of SO: SO cannot work to the advantage of the promotes because the measure of SO percent is fixed by the new rules in relation to the actual appointments made, whereas the old proportion of 2: 1 was in relation to the actual number of vacancies available for being filled in. Learned counsel has demonstrated with the help of some of the instances in the new seniority list, as to how promotes have been treated unfairly and unjustly in comparison with direct recruits. One such instance is that a direct recruit, Hrushikesh Mishra, who was appointed on July 3, 1966 is placed at serial No. 1001 while one of the petitioners, Kamal Kanti Dutta, who was appointed six months earlier on January 1, 1966 is placed at serial No. 1318. Another instance cited is that of a promote, V. R. Hiremath, who was appointed on March 1, 1956 but is placed at serial No. 486, the first 485 officers having been ranked according to the quota rule read with the seniority rule which prevailed till January 16, 1959. Hiremath, it is contended, not having been appointed in excess of the quota should have been given his seniority, on account of the three years ' weightage, with effect from March 1, 1953. In the process, he has lost a benefit spread 838 Over not only three but six years, because his ranking has been made according to the new rule in relation to the date January 16, 1959. These contentions were adopted by Dr. Y.S. Chitale who appears on behalf of the petitioner H.K. Sajnani in Writ Petition No. 4146 of 1978. It may be mentioned that in Writ Petition No. 66 of 1974 of K.K. Dutta and others which was filed on February 8, 1974 no demand was made for the review of the decisions earlier given by this Court on the points under consideration. The request for review of those decisions was made for the first time by the petitioners by paragraph 3 of their supplementary affidavit in rejoinder which was filed in this Court in April 1978. By paragraph 45 of his Writ Petition, which was filed on June 27, 1978 Sajnani did contend that the aforesaid judgments be reviewed since they were wrongly decided. Sajnani asked by paragraph Sl of his petition, and so did the petitioners in, the companion petitions asked by, their supplementary rejoinder, that the decision of this Court in Union of India vs M. Jangamayya(1) should also be reviewed. In his writ petition, Sajnani has cited several specific instances in support of his contention that under the new seniority rules, the promotes have been treated with an evil eye and an uneven hand. His complaint is that direct recruits who are "15 years junior in age and 15 years junior in experience had been placed above him"; and that the seniority list dated April 15, 1978 of Assistant Commissioners of Income tax, which is the basis of further promotion to the post of Commissioner of Income tax, does not include his name at all, though he has been working as an Assistant Commissioner ever since 1969 when he was selected by the competent authority with the concurrence of the U.P.S.C., after putting in 22 years of service as an I.T.O., out of which 10 years ' service was rendered in Class I itself. Sajnani also prays that the seniority list dated April 15, 1978 for the cadre of Assistant Commissioners be set aside as violating Articles 14 and 16(1) of the Constitution. In addition to these grounds which are pressed upon us for reviewing our decisions in Jaisinghani, Ist Gupta case, 2nd Gupta case and Jangamayya, (supra) the petitioners have placed strong reliance on the findings of the 49th Report of the Committee on Petitions of the Rajya Sabha, which was presented on January 9, 1976. A full text of that Report is extracted at pages 242 to 363 of the compilation filed by the writ petitioners in this Court. It appears from that report that at the sitting of the Rajya Sabha held on the 23rd August, 1974, Shri Kali Mukherjee, M.P., presented 839 a petition signed by Shri R.C. Pandey, General Secretary, All India A Federation of Income tax Gazetted Services Associations, New Delhi, praying for the repeal of the Income tax officers (Class I Service) 4 Regulation of Seniority Rules, 1973) and for the framing of fresh seniority rules in lieu thereof. The Committee heard the representatives of (i) promotes on whose behalf the petition was presented to The Rajya Sabha; (ii) the Ministry of Finance and (iii) the direct recruits who were represented by the Indian Revenue Service Association. After going through the evidence, the memoranda and the files supplied by the Ministry of Finance the Committee observed: ". the Department from 1944 till today has been working in a very haphazard, irregular and unscientific way. They made policies, rules, etc. and then went on deviating from them to suit certain exigencies. Instead of meeting the new situation or the demands of the Department in a scientific or rational way, ad hocism prevailed. This led to litigation for nearly two decades. Since the year 1944, the Department has made so many commissions and omissions in its long working. thereby it has provided arguments to both the direct recruits and promotes which have been advocated by them force fully. 'This has created bitterness and a picture of civil war in the Department. It would facilitate our understanding if we look at the various points, like vacancies, quota, seniority, weightage, confirmations, recruitments or promotions to temporary and permanent vacancies, etc. in a proper perspective. " The Committee examined the files produced before it by the Ministry, expressed its sense of "shock" at the plea of the Ministry that files of vital matters were not traceable and concluded that the new seniority rules of 1973 should be scrapped. The Committee recommended, inter alia,: "The entire concept of a common seniority list should be given up. The existing common seniority list of 1973 be replaced by two sets of seniority lists consisting of direct recruits and promotes respectively, on the basis of the dates of their appointment. The integration of the two channels which may be turned into two cadres should not be done at the level of I.T.Os. but after the level of Assistant Commissioners. " The Committee hoped that with the separation of the two seniority lists, the controversy of inter se, seniority will be resolved and the hardship caused to the 434 officers promoted between 1956 to 1966 will be relieved. The Committee made certain calculations according to which, the correct number of spill over promotes as on Jan 840 uary 16, 1959 was 15 and not 73. Observing in paragraph 7(i) that the Parliament owes responsibility in service matters too and that the executive is answerable to the Parliament for its actions, the Committee concluded its Report with the observation: ". if necessary, a special law could be enacted and in corporated in the Ninth Schedule of the Constitution so that no further scope is left for disputes and litigation and the Department would start functioning as an efficient and well knit unit and fulfil its intended role in combating the evils of black money and tax evasion and ensuring the stability and progress of our country. " It is not necessary to go into complications arising out of the random placement of statutes, rules and notifications in the 9th Schedule, but we do hope that, some day, the promised millennium will come. The Solicitor General and the other learned counsel who appear for the respondents resisted with great stoutness the attempt of the petitioners to reopen decisions rendered by this Court in disputes between promotes and direct recruits of the Income tax Service. The respondents contend that everyone of the arguments now presented before us has been already considered carefully in the earlier decisions and the petitioners ' demand for review is only yet another attempt to retrieve a lost cause. The learned Solicitor General also pressed upon us the need for treating the matter as closed. Reviews, he contends, should not be granted save in exceptional circumstances and at any rate, he says, no solution in service matters can ever satisfy both the promotes and direct recruits in an equal measure. Having considered these rival submissions carefully we are of the opinion that there is no substance in the request made on behalf of the petitioners for a review of the decisions in Jaisinghani, the 1st Gupta case, the 2nd Gupta case and Jangamayya (supra). Certain historic facts have to be borne in mind while considering the points raised before us. It is necessary to recall that for nearly a decade after 1950, appointments of promotes were made far in excess of the quota available to them. So long as the quota rule operated, it was possible to regularize their appointments when posts within their quota became available in later years. But a somewhat unprecedented ed situation arose by the upgrading of Class II posts to Class I, Grade II, 100 of the month January 16, 1959 and 114 on December 9, 1960. This massive upgrading of posts brought about a collapse of the quota rule. Subsequent absorption in posts which become available for being filled up later really means regularization of appointments, which is 841 possible provided there is no excessive deviation from the quota rule. A We quite appreciate that no blame can be laid at the doors of the promotes on the score that they were appointed in excess of the quota available to them. Perhaps, their appointments must even have enabled the administration to tide over administrative stalemate. But the tough problem which the administration has to face is that whereas it is necessary to recognize and protect the claims of promotes who are appointed in excess of their quota, it is equally necessary to ensure that the direct recruits do not suffer an undue set back in service on account of the excessive appointments of promotes. The conflicting claims of the two components of Service, both having an importance of their own, have therefore to be reconciled. It was with that object that the rules have been modified from time to time. The judgments rendered by this Court in matters which the petitioners want to be reopened show, without a shadow of doubt, how every effort was made to ensure that no hardship or injustice is caused to the promotes merely because their appointments exceeded their quota. It is not correct to say that the judgment in Jaisinghani (supra) was based on a concession or that the Court felt compelled to draw the particular conclusions therein because of the inability or refusal of the Finance Ministry to produce the relevant files. The Court adopted what it considered in the circumstances to be a satisfactory and scientific method of ascertaining the number of vacancies available for being filled up. It came to the conclusions that the number; of actual appointments should determine the number of vacancies available which, with great respect, was a perfectly legitimate conclusion to draw. In the grey area where service rules operate, more than one view is always possible to take without sacrificing either reason or commonsense but the ultimate choice has to be necessarily conditioned by several considerations ensuring justice to as many as possible and injustice to as few. We also find it impossible to hold that there was any error in the conclusions in Jaisinghani (supra) that rule 4 of the Recruitment Rules was a statutory rule. Subsequent decisions would show that there was hardly any dispute between the parties, at later stages at any rate, that rule 4 was a statutory rule. The other objections raised against the judgments in the various cases partake more or less of the same character and must be overruled for similar reasons. We appreciate that the promotes should not be penalized for the mere reasons that those of them who were appointed after January 16, 1959 were appointed on an officiating or ad hoc basis and had clear notice that the question of their seniority was still undecided. The 842 circumstances attendant upon their appointments cannot, however, be wholly over looked in determining whether the, constitutional constraints have been over stepped. In regard to the individual instances cited before us as exemplifying the injustice caused to the Promotes, it is not scare to test the constitutionality of a service rule on the touchstone of fortunes of individuals. No matter with what care, objectivity and foresight a rule is framed, some hardship, inconvenience or injustice is bound to result to some members of the service. The paramount consideration is the reconciliation of conflicting claims of two important constituents of Service, one of which brings fresh blood and the other mature experience. The counter affidavit dated August 31, 1973, filed in the 2nd Gupta case (supra) by Shri Mehra, Deputy Secretary, Ministry of Finance, shows the fullness with which the Government had consulted all possible interests while framing the impugned rules of seniority. The gamut of reasonable possibilities is fairly covered by the four alternatives referred to in Shri Mehra 's affidavit. The inconveniences and disadvantages flowing from the first three alternatives would be far greater than those flowing from the 4th. That is why the choice ultimately fell on the 4th alternative, under which the seniority between Promotes and direct recruits was fixed alternately on a roster system, vacancies being equally divided between Promotes and direct recruits, for the entire period from 1959 up to date. Though the promotes submitted in the 2nd Gupta case (supra) that the new seniority rule was unfair to them, they were unable to put forward any rational alternative, a fact which is noted at page 119 of the Report. That led the Court to remark: "They are indeed pleased with the increase in the promotional chances. But they are sore that the artificial rule of seniority which gave them weightage, has been removed. They do not dispute that by the increase in their ratio in Class I service, a larger number of Class II officers will, in course of time get a chance to be appointed by promotion as Assistant Commissioners. But they are sorry that their chances to be promoted to posts higher than that of the Assistant Commissioner are now retarded by the removal of the weightage. " This shows how difficult it is to solve the jig saw puzzle of service disputes. The Report of the 'Committee on Petitions ' of the Rajya Sabha, howsoever sincerely motivated and fully drawn, cannot be given the 843 importance which the promotes seem to attach to it. It is urged that the findings of the Committee are authentic because the Finance Ministry had made the relevant files available to it. We do not think that this argument is well founded. In paragraph 16 of its Report, the Committee does refer to certain files but those files appear to contain some noting in regard to the direct recruitment only. The Committee has given a table of comparative appointments in paragraph 19 of its Report, but it had to speculate on an important aspect of the matter, as is shown by its own language, that the table shows the number of direct recruits which the Government wanted to take and " on the basis of which the promotes must have been given promotions". (emphasis supplied). If indeed the relevant files were produced before the Committee, it would not have expressed its sense of deep shock and resentment at the disappearance of the files. We share the concern of the Committee which is expressed in paragraph 32 of its Report thus . "It is strange that many of the files which could probably have thrown light on the question of excess promotion, are reported `missing ' or `not available '. The conclusion is inescapable that these losses of files are far from being accidental. We can only conclude that important information was deliberately withheld from the Supreme Court as well as from the Committee. Had the Committee been allowed access to the file relating to the Seniority Rules framed in 1973, we could have known some more facts". This shows that the Committee, too? had to grope in the dark and indulge in a certain amount of speculation on matters under its consideration. In the circumstances, it has done as good a job as a Committee can and we desire to find no fault with its Report. But we can not accept the submission pressed upon us by the petitioners that the Committee 's Report must displace our judgments. It shall have been noticed that we have refused to reconsider our decisions not so much because of the view taken in the various cases cited by the learned Solicitor General, like Sajja Singh vs State of Rajasthan,(l) that this Court should not review its decisions too readily, as because, on merits, we see no justification for reconsidering the judgments already rendered by this Court. No fresh facts are brought to our notice, by way of discovery of new and important evidence, which would justify reconsideration of the decisions already rendered by this Court after the most careful examination of the competing 844 contentions. The report of the Rajya Sabha Committee on Petitions shows, as already indicated, that the relevant files are still not traceable. The petitions are accordingly dismissed but there will be no order as to costs. DESAI, J. I have carefully gone through the Judgment prepared by My Lord the Chief Justice but I regret my inability to agree with the same. The history, chronology of events, contentions canvassed and the three decisions of this Court disposing of the contentions have been so succinctly drawn up in the main judgment that its repetition would merely be an idle formality. I would, therefore, straightaway deal with the points raised in these petitions. The petitioners who are promote Income Tax officers Class I, Grade II, pray for reconsideration of the three decisions specifically S.G. Jaisinghani vs Union of India & O.r.s. Bishan Satup Gupta vs Union of India & o.r.s. (2) ( '1st Gupta case ' for short) and, Bishan Sarup Gupta etc. vs Union of India & ors. (13) ( '2nd Gupta case ' for short), and to the extent the first mentioned case is relied upon in Union of India etc. vs Malji Jangamayya etc. ,(4) on the following grounds; 1. The conclusion that rule 4 of the Income Tax officers (Class l, Grade II) Service Recruitment Rules is statutory and, therefore, the quota prescribed by the Government of India for recruitment to Income Tax officers Class I, Grade II in exercise of the power conferred by rule 4 would be statutory, proceeds on an assumption not warranted by the provisions of law bearing on the point and if both rule 4 and the quota presumably prescribed in exercise of the power conferred by rule 4 are not shown to be statutory, the foundation on which the edifice in Jaisinghani 's case rests is knocked out because it can be demonstrably established that neither rule 4 nor the quota prescribed there under was statutory in character but was at best an administrative instruction. 845 2. After the Court on an interpretation of the quota rule A held that the quota was related to vacancies arising in the grade every year, the conclusion reached did not conform to this finding but accommodated the so called inability (now shown to be factually incorrect) of the Government of India to give information to the Court about the vacancies in the grade every year with the result that the whole calculation of spill over is vitiated. The mandamus issued in Jaisinghani 's case was minister pretend by the Government because even if the quota was statutory it was operative only between 1951 and 1956 but the Government interpreted the mandamus to be operative beyond 1956 and upto 1967 which misinterpretation has been pointed out in the first Gupta case. In the 1st Gupta case while holding that the mandamus directing to treat the quota as statutory beyond 1956 was not justified yet till January 16, 1959, the Court itself in , directly accepted the quota rule as a guideline and treated that there was a spill over of 73 promotes. If rule 4 was not statutory and consequently the quota prescribed in exercise of the power which had outlived its prescribed span of life in 1956 could not be brought in to treat any appointment as invalid on the ground that there was no allocated post for those appointees treated as spill over because under rule 4 itself the Government had power to determine the method or methods to be employed for the purpose of filling in particular vacancies or such vacancies as may be required to be filled in during any particular period and the number of candidates to be recruited by each method. The action of the Government in upgrading 214 posts between 1959 and 1962 from Class II, Grade III to Class I. Grade II was not open to question as at that stage there was no quota rule and rule 4 enabled the Government to make recruitment from either of the two sources in exercise of its executive power. In upholding the seniority rules in 2nd Gupta case the Court introduced quota rule retrospectively by the back door which is impermissible and its operation manifestly establishes its utter unfairness inasmuch as a direct recruit not any where in the Department or may be a student may secure a march over a promote who has been working in Class 1, Grade II. 846 While no doubt this Court has constitutional power to review its decision, it is a power to be sparingly exercised because any such review has the tendency to unsettle questions which may have been finally determined. In fact, learned Solicitor General appearing for the Union of India warned us that the credibility of this Court is at stake if it goes on re opening and reviewing propositions which have been finally determined by this Court. Whose credibility is at stake would be presently pointed out because the examination of this ugly aspect could have been spared if such a contention was not canvassed. Repeatedly the Government of India kept back material from this Court filing affidavit after affidavit showing its inability to provide such important information on which the decision of the Court would turn even though it can now be demonstrably established that such mate rial and information was with the Government. If the Government of India Had not withheld such material information ' which has been rather adversely commented upon not by the Court but by the Legislature, the credibility of the department would be exposed. Reference may be made in this connection to the 49th Report of Committee on Petitions presented on January 9, 1976, to Rajya Sabha Secretariat, set up to dispose of a petition filed by one R.C. Pandey, General Secretary, All India Federation of Income Tax Gazetted Services Associations, praying for repeal of the Income Tax officers (Class I Service) (Regulation of Seniority) Rules, 1973, and for the framing of fresh seniority rules in lieu thereof. While disposing of this petition, the observation pertinent to the point under discussion may be extracted: "The Committee is shocked at the pleas of loss of vital records taken by the administration. In response to the committee 's requests relating to important files the administration has taken a similar plea. The Committee asked for a file which could possibly show the correct position on the question whether the 80: 20 quota during the period 1945 50 was really operative. The file is reported missing. Another file reported mis sing is that relating to the framing of the recruitment rules, 1945. The file relating to Shri R.C. Dutt 's affidavit (filed in Jaisinghani 's case) is also not available. Even the very recent file relating to the framing of Seniority Rules, 1970, is reported as 'not available '. On our insistence they have produced a thick sheaf of papers said to be 'reconstructed file '. It is strange that many of the files which could probably have that own light on the question of excess promotion, are reported 'missing ' or 'not available '. The conclusion is Inescapable that these losses of files are far from being accident. We can only 847 conclude that important information was deliberately withheld from the Supreme Court as well as from the Committee". (emphasis supplied) On these observations the credibility submission would not only stand squarely answered, but need not deter us from going into the points made in these petitions. However, this Court does not lightly undertake review of its decisions, more especially where conflicting claims have been settled by a decision of the Court and the whole gamut may have to be gone through over again on a reconsideration of the decision. The approach of the Court on a plea of reconsideration has been spelt out in Sajan Singh vs State of Rajasthan,(l) where a plea for reconsideration of the decision of this Court in Sri Sankari Prasad Singh Deo vs Union of India & State of Bihar,(2) was repelled observing as under: "It was, however, urged before us during the course of the hearing of these writ petitions that we should reconsider the matter and review our earlier decision in Sankari Prasad 's case. It is true that the Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good. The doctrine of stare decisions may not strictly apply in this context and no one can dispute the position that the said doctrine should not be permitted to perpetuate erroneous decisions pronounced by this Court to the detriment of general welfare. Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of a substantial and compelling character make it necessary to do so, we should be slow to doubt the correctness of previous decisions or to depart from them". G Similarly, in the Keshav Mills Co. Ltd. vs Commissioner of Income Tax Bombay North,(3) it was held that while exercising inherent power to reconsider and review its earlier decisions this Court would naturally like to impose certain reasonable limitations and would be reluctant 848 to entertain plea for reconsideration and review of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so. It is general judicial experience that in matters of law involving questions of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision making is often very difficult and delicate. In deciding whether a review is necessary when two views are possible it would not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. The Court 's discretion should be guided by such consideration whether in the interest of public good or for any other valid or compulsive reasons it is necessary that the earlier decision should be revised. This view was re affirmed in Manganese Ore (India) Ltd. vs The Regional Assistant Commissioner of Sales Tax, Jabalpur.(l) Bearing these principles in mind, it is necessary to examine whether a case for reconsideration of the three earlier decisions is made out by the petitioners or not. Jaisinghani 's case proceeds on a concession that rule 4 and the quota prescribed by the Government referable to the power conferred by rule 4 were statutory in character. This is borne out by the observation of the Court which may be extracted: "It is not disputed that rule 4 of the Income Tax officers, Class I, Grade II Service Recruitment Rules is a statutory rule and there is a statutory duty cast on the Government under ' this Rule to determine the method or methods to be employed for the purpose of filling the vacancies or number of candidates to be recruited by each method". Income Tax Service was reconstituted on September 29, 1944 The Government of India classified the existing Income Tax Service as Class I and Class II. The scheme provided for recruitment of Income Tax officers Class I, Grade II partly by promotion and partly by direct recruitment. The scheme was set out in the Government of India, Finance Department (Central Revenues) letter dated September 29, 1944. The quota prescribed therein has undergone a revision at a later date. It thus appears that the rules were pre constitution Rules and, therefore, their source must be traced to the Government of India Act, 1935 ( '1935 Act ' for short). Section 241 of the. 849 1935 Act made provision for recruitment and conditions of service. A bare perusal of the section would show that the power to make appointments in the case of service of Federation and posts in connection with the affairs of the Federation was conferred on the Governor General or such person as he may direct. The power to make rules in this behalf was conferred by sub section (2) on the Governor General or by some person or persons authorized by the Governor General to Make the rules for the purpose. On an examination of the rules under discussion no material was placed on record to show that the rules were made either by the Governor General or such person as authorized by him. As pointed out a little while ago, the rules were made by the Finance Department and no material was placed to show that the person or the persons who made the rules were authorized by the Governor General under section 241(2) of the 1935 Act in this behalf. The assumption made, therefore, that rule 4 of the Rules was statutory and that the quota prescribed in exercise of the power conferred by rule 4 must be statutory, is ill founded. This knocks out the entire foundation of the judgment of this Court in Jaisinghani 's case because this Court proceeded to hold that as the quota was statutory any recruitment made in excess of the quota in any given year would be invalid and at best can be regularized by relegating such excess appointments to the quota next year. If rule 4 and the quota referable to the power conferred by rule 4 were not statutory but were merely executive instructions, its violation would not render any appointment in excess of it invalid, but at best would be irregular and in this case on a plain reading of rule 4 it would not even be irregular. In P.C. Sethi & Ors. vs Union of India & Ors., this Court held that in the absence of any statutory rules it was open to the Government in exercise of its executive power to issue administrative instructions with regard to constitution and reorganization of service as long as there is no violation of Articles 14 and 16 of the Constitution. If the parent rule 4 enables the Government to prescribe method to be employed for the purpose of filling in any particular vacancy {. Or such vacancies as may be required to be filled in during any particular period and the number of candidates to be recruited by each method and if the so called quota is not statutory but merely a guideline, the Government whenever making appointment would be acting in exercise of power conferred by rule 4 which leaves it to the discretion of the Government to decide from what source recruitment should be made and what must be the quantum of vacancies that must be filled in at a given point of time and such appointment could not be said Hi to be invalid. 850 Alternatively, even if the assumption made in Jaisinghi 's case that rule 4 and the quota referable to the exercise of power conferred by rule 4 is unquestionable yet when this Court held that the quota is related to the vacancies, the decision proceeding on an incorrect plea that the information about the number of vacancies in a year is not available, is unsustainable for two reasons, namely, (I) that the files are now produced; and (2) in the absence of information about the vacancies available the Court could not have invalidated any appointment on the assumption that appointment from the source of promotes was in excess of the quota. On a plain reading of rules 3, 4 and S it appears crystal clear that the quota was related to vacancies and at one stage that was accepted. On this finding unless the fact situation is clearly established showing vacancies year to year it would be impossible to hold that in any year there was in excess in either source. Suppose there were 90 vacancies in a year and the quota was 66 2/3 for direct recruits and 33 1/3 for promotes, it would be open to the Government to promote 30 persons irrespective of the fact whether 60 direct recruits have become available or not. The assumption made that the recruitment made in a given year from both the sources would furnish information about the vacancies in a year would lead to a rather unfair conclusion inasmuch as the action of the Government in acting in a certain manner without due regard to the quota rule would work hardship on appointees even though on a correct calculation of vacancies the appointments may be valid and legal. The mandamus issued in Jaisinghani 's case was as under: "We are accordingly of the opinion that promotes from class II, grade III to class I, grade II service in excess of the prescribed quotas for each of the years 1951 to 1956 and on wards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents 1 to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24(2) Admn. I.T./51 dated October 18, 1951. We, however, wish to make it clear that this order will not affect such class II officers who have been appointed permanently as Assistant Commissioners of Income Tax. But this order will apply to all other officers including those who have been ap 851 pointed Assistant Commissioners of Income Tax provisionally pursuant to the orders of the High Court". The Government understood the mandamus as covering the whole period from 1951 to 1967. When this was questioned in the 1st Gupta case, this Court held that the quota rule Proprio vigor operated between 1951 to 1956 and if there were promotions in any year in excess of the quota those promotions were merely invalid for that year but they were not invalid for all time and they could be regularized by being absorbed in the quota for the later years. So adjusting the quota at any rate upto 1956, the quota rule on its own strength evaporated because it was to be in operation for a period of five years and no fresh quota rule was issued by the Government. Therefore, after 1956 rule 4 remained in force in all its rigour and was not hedged in by any quota. Rule 4 permitted the Government to make recruitment from either source without lettering its discretion by any quota rule which it was not bound to prescribe. On January 16, 1959, Government in the ministry of Finance informed the commissioners of Income tax that the President had sanctioned the upgrading to class I of 100 temporary Posts of Income Tax officers, Class II. On December 19, 1960, there was further upgrading of 114 posts from class II to class I. Between 1959 and 1962 these 214 posts were filled in by promotes. Now, in the Ist Gupta case this court held that even though the quota rule expired in 1956, yet the Government of India adopted it as a guideline. May be, it may be so. Does any appointment in breach of the guideline neither statutory nor even having the fragrance of any executive instruction become invalid more so when the Government had power to make appointment from either source uninhibited by any quota rule under rule 4 ? Yet the Court found that between 1956 and 1959 when 100 pasts came to be upgraded there was a spillover of 73 persons and because of the huge departure from guidelines the weightage rule giving seniority to the promotes by 2 3 years was crushed under its own debris. Again, with respect it must be confessed that rule 4 is overlooked or bypassed when saying that there was a spillover of 73 promotes between 1956 and 1959. Nor could it be said that the upgrading of 214 posts and filling them up by promotes would be in any way even irregular much less invalid because rule 4 enables Government to draw from either source. In the 2nd Gupta case in view of the decision in 1st Gupta case a fresh seniority rule was prepared and it was made retroactive from 11 January 16, 1959. If, the inter alia provides that the relative seniority amongst the promotes and the direct recruits shall be in the ratio of 852 1: 1 and the same shall be so determined and regulated in accordance with a roster maintained for the purpose, which shall follow the following sequence, namely: (a) Promote; (b) direct recruit, (c) Promote, (d) direct recruits, and so on. This method of roster undoubtedly introduces a quota by the back door. Once a roster is introduced Promote direct recruit, Promote direct recruit etc. even if some promotes have come in a bulk and if at a later date some direct recruits are appointed in bulk, while preparing roster an earlier date promote will have to yield his place to a later date direct recruit. Bluntly translated it means that the direct recruit who was never in service when promote was promoted, probably he may be a student. May be he may not have even passed the competitive examination, yet he may come into the picture and challenge one who has already been serving in the Department for a number of years. To illustrate, in the new seniority list prepared by the Government pursuant to the order made by this Court in the 1st Gupta case and upheld by this Court in 2nd Gupta case a promote of 1962 will have to yield his place to a direct recruit of 1966. With utmost hesitation I must say that service jurisprudence hardly permits a situation where a man not in service comes and challenges some thing which has been done much before he came in to service and gets such an advantage which on the face of it appears to be unfair. But apart from this, even in 1959 there was no quota rule and assuming that the old service rule giving weightage to the promotes crushed under that weight of large number of promotes being promoted, it would not be open to the Government to so prepare a fresh seniority list which cannot be given effect to unless a roster is introduced which introduces quota by the back door and which is so unfair in its operation that promotes of 1962 will have to yield place to direct recruits of 1966. Now under the old weightage rule promotes were given a weightage for service of 2 3 years over direct recruits because direct recruits were unable to undertake regular assessment work for a period of 2 3 years when they were more or less under training while promotes have been doing this work for a number of years and their experience is rejected in the weightage. The whole thing now appears in the reverse gear in that an uninitiated direct recruit takes precedence over an experienced promote. The unfairness of the new rule is writ large on the face of it. 853 This rule violates another important rule well recognised in the service jurisprudence that in the absence of any valid rule of seniority date of continuous officiation provides a valid rule of seniority. This rule is completely crucified under two unsustainable assumption that a quota rule having guideline sanction is made imperative in character and assumed to be in force between 1956 and 1959, and that even though Government in exercise of power conferred by rule 4 for its own necessity promoted 214 promotees to the upgraded posts yet they must yield place to some future direct recruits who may come to the department at a later date. This Court sustained the position holding that these were ad hoc appointments, and there were no regular posts for those promotees. This approach wholly overlooks the effect and the force of rule 4. Certainty and continuity demand that this Court should not reopen settled decisions or reopen closed questions unless under a compelling necessity. It may be that the fate of Income Tax officers, promotees and direct recruits, may rest with the three decisions of this Court. Unfairness to some of them may itself not provide a good and compelling reason for reopening and reconsidering the decisions. Therefore, if that were the only point for our consideration I would have unhesitatingly agreed with the decision rendered by My Lord the Chief Justice. But there is a further compelling necessity which impels me to pen these few lines. Jaisinghani and the two Gupta cases are being quoted times without number before this Court for the principles enunciated therein. These decisions, therefore, affect subsequent decisions of this Court as well as the High Courts. And some of the principles enunciated in these three cases stand in sharp contrast to other decisions of this Court and in fact this Court itself felt it necessary to warn that it may become necessary to reconcile these conflicting decisions. In this connection reference may be made to N.K. Chauhan and ors. vs State of Gujarat and ors. where this Court after referring to two sets of decisions charting two different courses, observed as under: "After all, we live in a judicial system where earlier curial wisdom, unless competently over ruled, binds the Court. The decisions cited before us start with the leading case in Mervyn Coutindo & ors. vs Collector of Customs, Bombay and close with the last pronouncement in Badami vs State of Mysore and ors. This time span has seen dicta go zigzag but we see no difficulty 854 in tracing a common thread of reasoning. However, there are divergencies in the ratiocination between Mervyn Coutindo (supra) and Govind Dattatray Kelkar and ors. vs Chief Controller of Imports and Exports and ors. , on the one hand and section G. Jaisinghani vs Union of India (supra) Bishan Sarup Gupta vs Union of India (supra) Union of India and ors. vs Bishan Sarup Gupta , and A. K. Subraman and ors. vs Union of India on the other, especially on the rota system and the year being regarded as a unit, that this Court may one day have to harmonize the discordance unless Government wakes up to the need for properly drafting its service rules so as to eliminate litigative waste of its servants ' energies". It is not for a moment suggested and I say so with utmost respect that the aforementioned three decisions are incorrect. In the light of the materials now placed especially the files which were withheld from the Court and the Committee the only view that I express is that enough compelling and necessary material has been placed on record making out a strong case for reconsideration of these decisions. Accordingly, in my view the present two petitions deserve to be placed before a larger Bench to be constituted by the Hon 'ble Chief Justice of India. ORDER In view of the majority opinion the Writ Petitions are dismissed with no order as to costs. S.R. Petitions dismissed.

Sri Amrit Nahata PW 1 was a member of Parliament and had produced a film titled "Kissa Kursi Ka" under the banner of Dhwani Prakash. The film according to the prosecution was a grotesque satire containing a scathing criticism of the functioning of the Central Government and was open to serious objections which were taken even by the Central Board of Film Censors. After the film was ready for release, PW 1, Amrit Nahata, applied for certification of the film on the 19th of April 1975 before the Board. The film was viewed on April 24, 1975 by an Examining Committee of the Board and while three members were of the opinion that certificate for exhibition, with drastic cuts, should be given, another member and Mr. N. section Thapa, Chairman, disagreed with the opinion of their colleagues and accordingly referred the matter to the Revising Committee. The Revising Committee after viewing the film agreed by a majority of 6 :1 for certification of the film, the dissent having been voiced by Mr. Thapa, the Chairman and accordingly under Rule 25(ii) of the Cinematograph (Censorship) Rules, 1958, a reference was made to the Central Government on 8 5 1975. In this connection, a letter was addressed to PW 6, Mr. section M. Murshed, who was at the relevant period Director in the Ministry of Information & Broadcasting, Incharge of film and T.V. Projects and was appointed, Joint Secretary on 1st of May 1975. Before making his comments PW 6 saw the film some time in the middle of May, 1975. Meanwhile, PW 1, Amrit Nahata, was directed to deposit the positive print of the film comprising 14 reels of 35 mm with the Film Division Auditorium, situate at 1, Mahadev Road, New Delhi. In pursuance of these directions PW 1 deposited the positive print and an entry thereof (Ext. 17A) was made by the Librarian cum Projectionist of the Auditorium. PW 17, K. P. Sreedharam, who was a Technical Officer incharge also inspected the reels and found them in order. Although Murshed, PW 6, after seeing the film agreed with the opinion of the Chairman of the Board that the film may be open to objection on the ground that it was full of sarcasm and contained criticism of the political functioning of the Governmental machinery yet he was personally of the opinion that certification for exhibition should not be refused. PW 6 accordingly recorded a note and submitted it to Mr. A. J. Kidwai, the then Secretary, Ministry of Information and Broadcasting. The matter was then examined by Mr. I. K. Gujral, the then Minister of Information and Broadcasting but 501 no final decision was taken. Meanwhile PW 1, Amrit Nahata, filed a writ petition (exhibit PW 1/D) in the Supreme Court. On the 23rd of the June 1975, a notice was issued by the Ministry of Information and Broadcasting to PW 1, Amrit Nahata, to show cause why certification to the film be not refused. The notice was made returnable by 9 7 75. Thus the Ministry of Information and Broadcasting had taken a tentative decision to refuse certification to the film because of its objectionable and offensive nature. Emergency was proclaimed on the night of between 25th and 26th of June, 1975 and soon thereafter A 1 took charge as the Union Minister of Information and Broadcasting and he was of the opinion that the film should be banned. On July 5, 1975, in pursuance of the decision taken by the Central Government, the Coordination Committee directed seizure of the film and that its negatives, positives and all other materials relating to it be taken in the custody of the Central Government vide exhibit PW 6/D. On July 10, 1975 A 1 directed that the film be banned for screening under the Defence of India Rules, vide Ext. PW 6/E 4. Finally, on the 11th of July 1975 PW 6 Murshed, passed an order that no certification was to be given to the film for public exhibition which was followed by a letter dated July 14, 1975, forfeiting the film to the Government. In pursuance of the decision taken by the Central Government PW 39, section Ghosh Deputy Secretary, incharge of the films and T. V. Division wrote a letter to the Chief Secretary Government of Maharashtra for seizure of all the positives and negatives of the film as also other related materials. In pursuance of this order, the Bombay police seized the entire film on 1 8 1975 and deposited in the godown of the Board. As, however, a final order had been passed by the Government banning the film. PW, 1, Amrit Nahata filed a petition for special leave in the Supreme Court on 6 9 1975. This petition was heard on 29 10 75 and the Court directed the Government to screen the film on 17 11 75 in the Auditorium for being shown to the Judges constituting the Bench. In pursuance of the order of the Court, intimation was sent to the Ministry concerned and PW 62, Mr. section M. H. Burney who was then Secretary Ministry of Information and Broadcasting directed that immediate action be taken to implement the orders of the Supreme Court and that arrangements should be made to book the Auditorium for 17 11 75. By a letter dated 5 11 75 (Ext. PW 2/A2) the Supreme Court was also informed regarding the steps taken. Sometime thereafter PW 2, L. Dayal took over as Joint Secretary (Films Division) in place of Mr. Murshed. The film, however, was not shown to the Judges of the Supreme Court on the ground that the films were not traceable. After the general elections of March 1977, the new Government directed the Central Bureau of Investigation to investigate into the matter of disappearance of the films. The C.B.I. accordingly investigated the matter and found that A 1, V. C. Shukla and A 2 Sanjay Gandhi conspired together and ultimately burnt them in Maruti Complex. Therefore C.B.I. filed charge sheets against V. C. Shukla A 1 and Sanjay Gandhi A 2 under several provisions of Penal Code. The prosecution examined several witnesses to prove criminal conspiracy of A 1 and A 2 more particularly under three stages, namely, (i) the deposit of the positive print in the Auditorium and its alleged transfer to the personal custody of A 1; (ii) the arrival of thirteen trunks containing negatives and other material related to the film at New Delhi from Bombay in pursuance of the orders of A 1 and their transfer to 1, Safdarjung Road, then to the Maruti Complex; and (iii) the actual orders alleged to have been given 502 by A 2 for burning the film in the premises of Maruti Complex which operation according to the prosecution was carried out by the approver PW 3, Khedkar and other witnesses between the 10th and 24th of November 1975. The Sessions Judge, Delhi convicted V. C. Shukla (A 1) appellant in Criminal Appeal No. 494/79 under section 120B read with Ss. 409, 435, 411, 414 and 201 Indian Penal Code and also under section 409 Indian Penal Code in respect of the positive print and negative and other material of the film "Kissa Kursi Ka ' under section 411 read with section 109 I.P.C.; under section 414 read with section 109 I.P.C.; and under section 201 read with section 109 I.P.C. The appellant, Sanjay Gandhi (A 1) in Criminal Appeal No. 493/79 was convicted by the Sessions Judge, Delhi under section 120B read with Ss. 409, 435, 411, 414 and 201, Penal Code and further convicted under Ss. 435, 411, 414 and 201 Penal Code in regard to the negative and other materials of the film, as also under section 409 read with section 109 of the Penal Code. Accused No. 1 was sentenced under section 120B read with Ss. 409, 435, 411, 414 and 201 to two years rigorous imprisonment; under section 409 regarding the negative and other materials to two years rigorous imprisonment and a fine of Rs. 20,000 and in default further 6 months rigorous imprisonment, under section 409 regarding the positive print of the film to two years rigorous imprisonment and a fine of Rs 5000 and in case of default further rigorous imprisonment for three months; under section 411 read with section 109 to rigorous imprisonment for one year; under section 414 read with section 109 to rigorous imprisonment for one year; under section 201 read with section 109 to rigorous imprisonment for one year; under section 435 read with section 109 to rigorous imprisonment for one year and six months. Accused No. 2 was sentenced under section 120 B read with sections 409, 435, 411, 414 and 201 to rigorous imprisonment for two years; under section 435 to rigorous imprisonment for one year and six months and a fine of Rs. 10,000 and in case of default further rigorous imprisonment for four months; under section 411 to rigorous imprisonment for one year; under section 414 to rigorous imprisonment for one year; under section 201 in regard to the negative, etc., to rigorous imprisonment for one year; under section 201 in regard to 13 trunks, etc., to rigorous imprisonment for one year and under section 409 read with section 109 to rigorous imprisonment for two years. The aforesaid sentences of imprisonment were ordered to run concurrently in the case of both the accused. On being convicted by the Sessions Judge, Delhi, both the accused filed appeals before the Delhi High Court against their convictions and sentences, and were released on bail pending the hearing of the appeals. Meanwhile, the Special Courts Act of 1979 came into force and by virtue of a declaration made under section 7 of the said Act, the appeals stood transferred to the Supreme Court. The appellants raised the following preliminary objections as to the constitutional validity of Sections 5, 7, 9 and 11 of the Act, apart from the plea that their conviction and sentence were not based on any evidence, legal or otherwise. A. Even having regard to the principles laid down the Supreme Court in the Reference case, the Act fails to pass the tests laid down for a valid classifica 503 tion under article 14. The decision given in the Reference case upheld the Bill and rejected the challenge that the Bill violated article 14 mainly on the ground that the Bill sought to put a certain class of persons, namely, persons holding high public or political offices who had committed offences only during the period of Emergency. In other words, the constitutionality of the Bill was upheld on the ground that the legislation was confined to select offences committed by a particular class of persons during the Emergency period. The impugned Act transgressed the limits imposed by the judgment in the Reference case by bringing within its fold offences committed prior and subsequent to the Emergency and thus was in direct conflict with the opinion of this Court rendered in the Reference case. In other words this Court struck down that part of the Bill which related to the period between February and June 1975 on the ground that persons having committed offences during that period could not be clubbed with those who had committed offences during the period of Emergency. Thus the Act, by clubbing together persons accused of offences committed during the Emergency with those alleged to be guilty of crimes pertaining to periods before and after the Emergency (i.e. by dealing with offences committed at any point of time whatsoever), has violated the guarantee under article 14 and the classification made by the Act is in direct contravention of the opinion given by this Court in the Reference Case. B. Even if the classification was valid, as the procedure prescribed by the Act is extremely harsh and prejudicial to the accused, Articles 14 and 21 are clearly violated. (a) Section 7 deprives a valuable right of appeal; (b) Section 11(1) takes away the valuable right of revision against interlocutory orders; (c) Section 9(3) of the Act prescribes the procedure for the trial of Warrant cases before the Magistrate in Sections 238 to 243 and 248 Crl. P.C., while treating the special Court as Court of Sessions. C. Assuming the classification of persons holding high public or political offices to be justified, it suffers from a serious infirmity in that neither the terms "high public or political office" has been defined nor have the offences been delivered or defined so as to make the prosecution of such offenders a practical reality. Even the nature and character of the offences have not been defined in the Act which introduces an element of vagueness in the classification. E. Parliament was not competent to pass a special Act and create Special Courts for a particular set of offenders. The Act seeks to change the situs of the Court and virtually abrogates section 181 of the Code of Criminal Procedure. The Act creates an invidious distinction in as much as persons holding high public or political offices would have the benefit of trial by such an experienced officer as a sitting judge of a High Court, while the appellants have been deprived of that right and were tried by a Special Judge who was only a Sessions Judge. 504 H. Section 5 of the Act suffers from several constitutional and legal infirmities, namely, (a) Section 5 (1) suffers from the vice of excessive delegation of powers so as to violate Article 14 in as much as the discretion conferred on the Central Government is absolute, naked and arbitrary and is clearly discriminatory as it is open to the Central Government to pick and choose persons to make declarations in respect of them while excluding others. (b) The issuance of a declaration under section 5(1) of the Act depends purely on the subjective satisfaction of the Central Government and under sub section (2) of section 5 such a declaration cannot be called into question by any court so that there would be an element of inherent bias or malice in an order which the Central Government may pass, for prosecuting persons who are political opponents and that the section is therefore invalid. (c) As the Central Government in a democracy consists of the political party which has the majority in Parliament, declarations under section 5(1) of the Act could be used as an engine of oppression against members of parties who are opposed to the ideologies of the ruling party. (d) the provisions about declaration contained in Section 5(1) are violative of the principle of natural justice in as much as they do not provide for any bearing being given to the accused before a declaration is made. (e) in an instant case, the declaration dated June 22, 1979 made under section 5(1) of the Act per se shows that it had not resulted from any real application of the mind by the Central Government. Once the prosecution of the appellants had culminated in a conviction and an appeal therefrom there was no question of the existence of any "prima facie case" and that the use of such an expression could be intelligible only if the accused were facing criminal proceedings which had not culminated in a conviction; and (f) the declaration made under section 5 of the Act is non est because it has not been laid before each House of Parliament as required by section 13 of the Act. The appellant not having held any high public or political office has been drawn into this case by virtue of a declaration and has therefore been singled out for a discriminatory treatment. K. Section 5(1) of the Act has no application to the facts of the present case because under section 5(1) a declaration has to be made on the basis of the source indicated in the section, namely, inquiries conducted under the Commissions of Inquiry Act or investigations which become otiose and would have relevance only if the appellant had not been convicted. L. Conviction being a finding of guilt cannot be said to fall within the situation contemplated by section 5(1) of the Act. Section 6 is an extension of the scheme contained in section 5, the former does not overrule the entire code of Criminal Procedure but in fact takes in only those cases which are pending at the trial stage when the declaration is made. Once the case ends in a conviction, section 5 spends itself out and there is no room for the application of section 5. M. Section 7 would not apply to this case because its language embraces only those appeals which arise out of a prosecution which itself is pending at the time when a declaration is made. 505 N. By providing in section 7 for an automatic transfer of appeals from the High Court to the Supreme Court, the Legislature has exercised a judicial power which is vested in the Supreme Court alone under section 406 of the Code of Criminal Procedure and that the section is invalid as it conflicts with section 406 Crl. Allowing the appeals, the Court ^ HELD: (Regarding Constitutional validity of the Act) 1. In a diverse society and a large democracy such as ours where the expanding needs of the nation change with the temper of the times, it is extremely difficult for any legislature to make laws applicable to all persons alike. Some amount of classification is, therefore, necessary to administer various spheres of the activities of the State. [522 D E] 2. It is well settled that in applying article 14 mathematical precision or nicety or perfect equanimity are not required. Similarity rather than identity of treatment is enough. The courts should not make a doctrinaire approach in construing article 14 so as to destroy or frustrate any beneficial legislation. What article 14 prohibits is hostile discrimination and not reasonable classification for the purpose of legislation. Furthermore, the Legislature which is in the best position to understand the needs and requirements of the people must be given sufficient latitude for making selection or differentiation and so long as such a selection is not arbitrary and has a rational basis having regard to the object of the Act, article 14 would not be attracted. That is why this Court has laid down that presumption is always in favour of the constitutionality of an enactment and the onus lies upon the person who attacks the statute to show that there has been an infraction of the constitutional concept of equality. It has also been held that in order to sustain the presumption of constitutionality, the Court is entitled to take into consideration matters of common knowledge, common report, the history of the times and all other facts which may be existing at the time of the legislation. Similarly, it cannot be presumed that the administration of a particular law would be done with an "evil eye and an unequal hand". Finally, any person invoking article 14 of the Constitution must show that there has been discrimination against a person who is similarly situate or equally circumstanced. [522 E H, 523 A] State of U.P. vs Deoman Upadhyaya, ; , followed. The classical tests laid down for the application of article 14 are the following: 1. The classification must be founded on an intelligible differentia which distinguishes persons who are placed in a group from others who are left out of the group. Such differentiation must have a rational relation to the object sought to be achieved by the Act. There must be a nexus between the differentiation which is the basis of the classification and the object of the Act. [523 D F] 4. It cannot be gainsaid that this Court while dealing with the Reference case was not at all concerned with the provisions of the Act which is of much 506 wider application than the Bill considered by the Court in the Reference. It is no doubt true that the Bill contained provisions for punishing only those offenders who were accused of offences committed during a particular period, namely, the period of Emergency. It is also true that the period of Emergency was an extraordinary one in the history of our country and its features have been spelt out in the preamble of the Bill as also in the judgment given by this Court in the aforesaid case. But that by itself does not debar Parliament from passing a permanent Act to deal with a specified class of persons who occupy high public or political offices (which are offices of trust) and misuse or abuse them. It cannot be doubted that for the establishment and continuance of a Parliamentary democracy and to secure efficiency and purity of administration it is necessary that when such persons commit serious abuse of power and are guilty of a breach of the trust reposed in them, they would form a special class of offenders. [525 F H, 526 A] 5. That Purity of life is a desired goal at all times itself is a sufficient justification for the classification made by the Act which widens its scope to include offenders of a particular type, whether before, during or after the Emergency. In fact, such persons would undoubtedly form a special class of offenders which would justify the legislative measure singling them out for an expeditious trial. To hold otherwise would be to say that persons bearing the aforesaid attributes would be immune from prosecution under any Special Act. Passing of such a Special Act is within the Legislative competence of Parliament. [526 D E, 527 G H, 528 B] 6. The Act does not suffer from any infirmity and the circumstance that it applies to offences committed at any time by a particular set of persons possessing special characteristics does not render it unconstitutional; for, when it puts into a class a particular set of persons having special characteristics which distinguish them from others who are left out of that class and who are to be tried under the ordinary law, the classification is eminently reasonable. The classification made has a reasonable nexus with the object sought to be achieved. Separate grouping of holders of high offices for purposes of expeditious criminal action to be taken by superior courts is a reasonable and valid classification because it enhances confidence in the rule of law, strengthens the democratic system and ensures purity of public life and political conduct. [528 E G, 529 G H, 530 A] 7. The opinion of the Supreme Court in Re. Special Act, in no way amounted to disapproval or condemnation of a permanent law in future bringing within its scope all holders of high public or political office. [530 G H] The Bill was challenged before the Supreme Court on the touch stone of article 14 on several groups. In the first place, it was argued that no rational basis for separately classifying Emergency offenders existed. The second ground of challenge was that assuming that there was a valid classification, the same was bad because it suffered from the vice of under inclusion inasmuch as holders of high public or political offices were left out. This Court, however, repelled the argument of rational basis on the ground that the Emergency period, because of its special characteristics, afforded adequate basis for separate classification of Emergency offences. The Court was not at all at that time concerned expressly with the question as to whether classification of high public or political dignitaries without reference to any period during which they were alleged to have committed offences would be violative of article 14 of the Constitution. On 507 the other hand, this Court made clear observations that an Act providing for such a classification would be not only valid but also highly welcome. It is true that the provision regarding a particular period before the Emergency was then struck down but that was so because the Bill was confined to offences committed only during the period of Emergency and the inclusion of another period meant bad classification for the reason that the period last mentioned could not be distinguished from either pre or post Emergency periods on any reasonable basis. This view of the Court could not be interpreted as laying down a law of universal application that no Special Act on a permanent basis classifying offenders possessing particular characteristics or attributes and providing for their prosecution under a special procedure would be invalid or violative of article 14. [530 A G] 8. The expression "high public or political offices" is of well known significance and bears a clear connotation which admits of no vagueness or ambiguity. Persons holding high public or political offices mean persons holding top positions wielding large powers. [531 C D, F] Political office is an office which forms part of a Political Department of the Government or the Political Executive. This, therefore, clearly includes Cabinet Ministers, Ministers, Deputy Ministers and Parliamentary Secretaries who are running the Department formulating policies and are responsible to the Parliament. The word 'high ' is indication of a top position and enabling the holders thereof to take major policy decisions. Thus, the term 'high public or political office ' used in the Act contemplates only a special class of officers or politicians who may be categorised as follows: 1. Officials wielding extraordinary powers entitling them to take major policy decisions and holding positions of trust and answerable and accountable for their wrongs. Persons responsible for giving to the State a clean, stable and honest administration; 3. Persons occupying a very elevated status in whose hands lies the destiny of the nation. [534 C E] The rationale behind the classification of persons possessing the aforesaid characteristics is that they wield wide powers which, if exercised improperly by reason of corruption, nepotism or breach of trust, may mar or adversely mould the future of the country and tarnish its image. It cannot be said, therefore, with any conviction that persons who possess special attributes could be equated with ordinary criminals who have neither the power nor the resources to commit offences of the type described above. The term 'persons holding high public or political offices ' is self explanatory and admits of no difficulty and that mere absence of definition of the expression would not vitiate the classification made by the Act. Such persons are in a position to take major decisions regarding social, economic, financial aspects of the life of the community and other far reaching decisions on the home front as also regarding external affairs and if their actions are tainted by breach of trust, corruption or other extraneous consideration, they would damage the interests of the country. It is, therefore, not only proper but essential to bring such offenders to book at the earliest possible opportunity. [534 F H, 535 A] 508 9. Clause 4 of the preamble to the Special Courts Act clearly indicates the nature of the offences that would be tried under the Act. [535 B] The words 'power being a Trust ' clearly indicate that any act which amounts to a breach of the trust or of the powers conferred on the person concerned would be an offence triable under the Act. Clause (4) is wide enough to include any offence committed by holders of high public or political offices which amounts to breach of trust or for which they are accountable in law and does not leave any room for doubt. Section 5 which confers powers on the Central Government to make a declaration clearly refers to the guidelines laid down in the preamble and no Central Government would ever think of prosecuting holders of high public or political offices for petty offences. [535 D G] 10. Sections 7 and 11 of the Special Courts Act are within the legislative competence of the Parliament. That is to say Parliament has the competence to provide for the creation of Special Courts and to confer jurisdiction on the Supreme Court by providing that an appeal shall lie as of right from any judgment or order of Special Court to the Supreme Court both on fact and on law. [536 A D] In re. Special Courts Bill ; applied. The Act neither seeks to change the situs of the Court nor virtually abrogates Section 181 of the Code of Criminal Procedure. [536 E] In re. Special Court Bill, [1979] 3 SCR; followed. The question of the appellants being tried by the Special Judge appointed under the Special Courts Act could not arise because the said Special Court did not exist at all even when the trial of the appellant was concluded. The First Information report against the appellants was lodged on 13th April 1977 and the chargesheet was submitted before the Special Judge who convicted the appellants by his order dated February 27, 1979. The Act, however, came into force on May 16, 1979, that is to say, three months after the conviction and about two months after the appellants had filed their appeals before the High Court. The existence of such fortuitous circumstances cannot attract Article 14. [536 G H, 537 A B] Khandige Sham Bhatt and Ors. vs The Agricultural Income Tax Officer, ; ; Dantuluri Ram Raju and Ors. vs State of Andhra Pradesh and Anr. , ; applied. Section 5(1) does not suffer from the vice of excessive delegation of powers so as to violate Article 14. No unguided or uncanalised power has been conferred on the Central Government. A basic condition imposed on the Central Government is that there must be a proper application of mind regarding the existence of prima facie evidence of the commission of an offence. Secondly, the discretion has to be exercised in accordance with the guidelines contained in the preamble. The various clauses of the preamble lay down clear guidelines and provide sufficient safe guards against any abuse of power. Thirdly, clause (4) of the preamble clearly lays down that the power under section 5 is exercisable only after the Commission of an offence by the holder of a high public or political office has been disclosed as a result of an inquiry conducted under the Commissions of Inquiry Act or of an investigation conducted by the Government through its agencies. It is well settled that discretionary power is not the same thing as power to discriminate nor 509 can the constitutional validity of a law be tested on the assumption that where a discretionary power is conferred on a high authority, the same may or would be exercised in a discriminatory manner. [538 E H, 539 A] The power conferred on the Central Government is controlled by the guidelines contained in the preamble which by virtue of the provisions of section 5(1) becomes a part of that section. As the power has been conferred on the Central Government which is to make a declaration in accordance with the conditions laid down in section 5(1) and, therefore, in conformity with the guidelines mentioned in the preamble, the attack based on discrimination is unfounded. [541 B C] Dr. N. B. Khare vs The State of Delhi, ; , Kathi Raning Rawat vs The State of Saurashtra, ; ; Matajog Dubey vs H. C. Bhari, ; In Re. The Kerala Education Bill, 1957, [1959] SCR 995 Jyoti Parshad vs The Administrator for the Union Territory of Delhi, ; ; Moti Ram Dekha etc. vs General Manager, N.E.F., Railways, Maligaon, Pandu etc. ; ; V. C. Shukla vs The State through C.B.I., ; followed. The power of the Central Government to issue a declaration is a statutory power circumscribed by certain conditions. Furthermore, as the power is vested in a very high authority, it cannot be assumed that it is likely to be abused. On the other hand, where the power is conferred on such a high authority as the Central Government, the presumption will be that the power will be exercised in a bona fide manner and according to law. [541 D F] Chinta Lingam and Ors. vs Government of India and Ors. , ; ; Budhan Chaudhary and Ors. vs The State of Bihar, ; ; referred to. The contention that declarations under section 5(1) of the Act could be used as an engine of oppression against members of parties who are opposed to the ideologies of the ruling party is one arising out of fear and mistrust which, if accepted would invalidate practically all laws of the land; for, then even a prosecution under the ordinary law may be considered as politically motivated, which is absurd. Furthermore, prejudice, malice or taint is not a matter for presumption in the absence of evidence supporting it. It is well settled that burden lies on the parties alleging bias or malice to prove its existence, and if malice or bias is proved in a particular case, the courts would strike down the act vitiated by it, in exercise of its powers under Articles 226, 227 or 136. [542 A D] In Re. Special Courts Bill, referred to. At the stage when the declaration is sought to be made there is no list pending nor has any prosecution been launched against the accused. Section 5 deals only with the decision taken by the Central Government to prosecute and until that decision is notified, the prosecution does not start, and the question of an accused being heard at that stage, therefore, does not arise at all. [542 F G] Cozons vs North Devon Hospital Management Committee and Anr., quoted with approval. Under section 5(1) of the Act the Government has to be satisfied on two counts before it could issue a declaration. It must be satisfied in the first 510 instance that there is prima facie evidence of the commission of an offence. Secondly, it must form the opinion in accordance with the guidelines contained in the preamble that such offence ought to be dealt with under the Act. The condition of the existence of prima facie evidence is fulfilled in the case of the present declaration though the trial in the first Court had ended in a conviction and an appeal therefrom, the reason being that if conviction is construed as evidence of the existence of something more than a mere prima facie case, that would not mean that a prima facie case cease to exist. That a prima facie case must be found to exist is only the minimum requirement for the satisfaction of the Central Government and it would be doubly made out if the evidence available is stronger than is needed to make out only a prima facie case. A conviction of an accused person cannot mean that there is no prima facie evidence against him. All that it spells out is that not only a prima facie case is made out against him but that the evidence available is even stronger and is sufficient for a conviction. However, as the Government, while acting under the section, is to satisfy itself only with the existence of prima facie evidence, the assertion by it in the declaration that such evidence was available to its satisfaction cannot, by any stretch of imagination, be held to be inapplicable to a case in which a conviction has been recorded. In this view of the matter the use of the expression 'prima facie ' evidence in the declaration is fully justified even though the trial had ended in a conviction which was under appeal on the date of the declaration. [544 A G] A perusal of the declaration reveals that it gives the history of the case from beginning to end which demonstrates that the Central Government was fully aware of the various stages through which the trial of the appellants passed. Thus, the formation of the opinion by the Government of the existence of a prima facie case cannot be held to be perfunctory or illusory. It has not been shown that the declaration was in any way irrational or mala fide or based on extraneous considerations. [546 F G] 18. The provisions of Section 13 of the Special Courts Act are purely directory and not mandatory so that if the conditions mentioned in it are not fulfilled the declaration would not be vitiated. It is to be noted that the section does not say that until a declaration is placed before the two Houses of Parliament it shall not be deemed to be effective, nor does the section intend that any consequences would result from its non compliance. On a true interpretation of section 13 of the Act, it is clear that it is a case of a simple laying of the declaration before each House of Parliament. [547 A B, 548 B] M/s Atlas Cycle Industries Ltd. and Ors. vs State of Haryana, ; ; applied. The doctrine of the violation of basic structure of the Constitution or its fundamental features applies not to the provisions of a law made by a State legislature or Parliament but comes into operation where an amendment made in the Constitution itself is said to affect its basic features like fundamental rights enshrined under Articles 14, 19, 31 or the power of amendment of the Constitution under article 368 and so on. The doctrine has no application to the provisions of a Central or State law because if the statute is violative of any provision of the Constitution it can be struck down on that ground and it is not necessary to enter into the question of basic structure of the Constitution at all. [548 C E] 511 20. It is true that section 6 of the Act does not contemplate a prosecution which is relatable to the declaration under section 5 but that does not debar the application of section 5 to other stages of a criminal case, especially those specifically dealt with under section 7 of the Act which fully covers the situation in hand. The limited field in which section 6 operates does not therefore exhaust the consequences flowing from the issuance of a declaration under section 5 of the Act. [549 A B] 21. The words "whether pending or disposed of" are significant and qualify the immediately preceding clause "a prosecution in respect of such offences". The legislature has thus taken care to expressly provide that an appeal or revision would be covered by section 7 and transferable to the Supreme Court for disposal if it is directed against a judgment or order made in prosecution which is either pending or has been disposed of, the only other requirement of the section being that such appeal or revision must itself be pending at the date of the declaration. Therefore to interpret section 7 in such a way as its applicability is limited to appeals or revisions arising from prosecutions pending at the trial stage at the date of the relevant declarations is possible only if the words "or disposed of" are treated as absent from section a course which is not open to this Court in view of the express language used. [549 E G] 22. There is no question of the exercise of any judicial power by the legislature in enacting section 7 of the Act which covers a well known legislative process. By enacting section 7, Parliament has merely provided a new forum for the appeals which were pending in the High Court and in respect of which a valid declaration, fully consistent with the provisions of the Act, was made a course which involved no interference with the judicial functions of the court and was fully open to the legislature. [550 A, E F] Indira Nehru Gandhi vs Sri Raj Narain, ; distinguished. Since the classification made by the Act complies with the dual test laid down by the Supreme Court and therefore held to be a reasonable classifications, Article 14 would not be attracted even if the procedure is held to be harsher than that available under the ordinary law. Apart from that, the procedure prescribed by the Act is not harsh or onerous but is more liberal and advantageous to the accused who is assured of an expeditious and fair trial thereunder. [550 G H, 551 A] 24. An appeal being a creature of statute, an accused has no inherent right to appeal to a particular tribunal. The legislature may choose any tribunal for the purpose of giving a right of appeal. Moreover, an appeal to the High Court is less advantageous than an appeal to the Supreme Court for the following reason: "The right of appeal given to an accused from the order of a Session Judge or Special Judge to the High Court is not totally unrestricted. Section 384 of the Code of Criminal Procedure empowers an Appellate Court to dismiss an appeal summarily if it is satisfied that there is no sufficient ground for interference. " While an appeal to the High Court under the Code of Criminal Procedure is attended with the risk of being summarily dismissed under section 384, an appeal under section 11(1) of the Act which runs thus: 512 "11. (1) Notwithstanding anything in the Code an appeal shall lie as of right from any judgment sentence or order, not being interlocutory order, of a Special Court to the Supreme Court both on facts and on law. " is not so. An appeal under section 11(1) lies as of right and both on facts and on law. Thus, the right conferred on a convict by section 11(1) is wider and less restricted than the right of appeal given by the Code of Criminal Procedure. (2) If the appeal is filed before the Supreme Court or is transferred thereto, the accused becomes entitled to a hearing of his case by the highest court in the country both on facts and on law and thus gets a far greater advantage than a right to move the Court for grant of special leave which may or may not be granted, it being a matter of discretion to be exercised by the Supreme Court. Therefore the procedure regarding the appeals under the Act is not harsher than that prescribed by the Code of Criminal Procedure. [552 D H, 553 E H, 554 C] Syed Quasim Razvi vs The State of Hyderabad and Ors. ; applied. Even the Code of Criminal Procedure does not provide for any revision against an interlocutory order. Section 397(2) of the Criminal Procedure Code expressly bars revision against interlocutory orders. Inasmuch as there is no right of revision either under the Code of Criminal Procedure or under the Act, it cannot be said that section 11(1) of the Act creates a definite procedural disadvantage to the accused. In fact under the Act, the Special Court is presided over by no less a person who is a sitting judge of a High Court and the possibility of miscarriage of justice is reduced to the barest minimum. [555 C D] V. C. Shukla vs The State, through C.B.I., ; Jagannath Sonu Parker vs State of Maharashtra, [1963] Suppl. 1 SCR 573; followed. The procedure for trial of warrant cases gives a full opportunity to the accused to participate in the trial at all its stages and to rebut the case for the prosecution in every possible manner and it has not been pointed out how the adoption thereof for trials under the Act would be to the disadvantage of the accused. Therefore the provisions of sections 9(1) and (3) of the Act cannot be said to be harsh. [556 E G] State of West Bengal vs Anwal Ali Sarkar, ; explained and distinguished. None of the sections of the Act are violative of Article 14 or Article 21 or any other provision of the Constitution. The classification made in the Act is valid and reasonable and has a rational nexus with the object of the Act and that the procedure prescribed is fair and advantageous to the accused. [561 E F] 28. The appellant in Crl. Appeal 493/79 has not been singled out for a discriminatory treatment. It is true that he has never been the holder of any high public or political office but the first clause of the preamble 513 clearly includes within its ambit not only persons holding high public or political offices but also others. Section 8 thus incorporates the well known concept of joint trial of accused persons in respect of offences forming part of the same transaction. [551 C E] Further Held (on merits): 29. In order to prove a criminal conspiracy which is punishable under section 120B of the Indian Penal Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of the minds resulting in an ultimate decision taken by the conspirators regarding the ommission of an offence. [565 H, 566 A] 30. It is true that in most cases, it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement two or more persons to commit an offence. [566 A B] In the instant case, there is no acceptable evidence connecting either of the appellants with the existence of any conspiracy. Even taking the main part of the prosecution case at their face value, no connection has been proved with the destruction of the film 'Kissa Kursi Ka ' and the two appellants. The evidence produced by the prosecution falls short of the standard of proof required in a criminal case. The prosecution failed to prove either there was any existence of any conspiracy between A 1 and A 2 to destroy the film 'Kissa Kursi Ka ' by burning it or to commit any other offence in respect of the film. There is evidence to show that there was any meeting of minds between A 1 and A 2. Even on the first two parts of the prosecution case, the allegation of the prosecution that the positive prints were removed at the instance or to the knowledge of A 1 or that the negatives and other materials of the film were sent for by A 1 and kept in his personal custody has not been proved. The mere fact that A 1 decided to show the film and refused certification for public exhibition and passed orders for seizure of the film and its transfer to the custody of the Ministry of Information does not disclose any offence. The decision to ban the film was not taken by A 1 secretly or clandestinely but after a full fledged discussion in the coordination Committee meeting attended by senior officers of various ministries as deposed by Prasad PW 63. Further that part of the case which relates to the burning of film material rests solely on the uncorroborated testimony of the approver and is negatived insofar as the role therein of A 1 is concerned. [566 C D, 583 F H, 584 A B] (i) Till 9 7 75 i.e. the date by which the notice to show cause why certification of the film 'Kissa Kursi Ka ' was made returnable, neither A 1 nor A 2 was anywhere in the picture. The facts disclosed by the prosecution ex facie show that objection to certification of the film had been taken at the very initial stage and the ultimate order was passed during the time when A 1, Mr. Shukla had taken over as Minister, which was merely the final scene of a drama long in process; [564 C E] (ii) Even at the stage of proposed exhibition of the film to the Judges of the Supreme Court who constituted the Bench and heard the Special Leave Petition i.e. 17 11 75 there was absolutely no evidence to show that there 514 was any meeting of minds of A 1 and A 2 nor is there any material to indicate that A 2 played any role in the burning of the film. The decision to ban the film was taken by the Ministry headed by A 1, on the merits of the case. No motive is attributable to A 1 at this stage because even the Chairman of the Board, PW 8 Mr. Thapa who was an independent witness was of the view that the film should not be certificated for public exhibition. Similarly, the steps taken by the officers of the Ministry in persuance of the film at Bombay and its transfer to Delhi was in the nature of routine to see that the decision taken by the Government was implemented. As soon as the Ministry received the orders of the Supreme Court for screening the film on 17 11 1975, immediate steps were taken to comply with the orders of the Court. Admittedly between 17th November 1975 to 23rd November 1975, A 2 was either away to Hyderabad or Sikkim as proved by DW 3. This negatives the story of the approver connecting A 2 with the burning of the film. [565 E H, 581 C D, 582 A] A lot of evidence has been produced by the prosecution to show: (a) that the positive print of the film found its way into the luggage compartment of the car in which A 1 then travelled to the Prime Minister 's house where the print was unloaded by someone in the absence of A 1; and (b) that the negatives and other material relating to the film were taken in a tempo or two to the Prime Minister 's residence and from there to the Maruti Complex where they were stored before their destruction. [584 B D] But the connection of A 1 or A 2 therewith remains unproved. Had these factors provided circumstantial evidence on the basis of which alone the charge against either A 1 or A 2 could be held established it would have been necessary for the Court to sift the evidence produced in support thereof. But that is definitely not the case, for, if either or both of the factors are proved, the inference of guilt of either A 1 or A 2 does not necessarily follow. For circumstantial evidence to furnish evidence of guilt it has to be such as it cannot be explained on any other reasonable hypothesis except the guilt of the accused which is not the case here because appellants A 1 and A 2 could not be said to be the only persons interested in the destruction of the film if it was as obnoxious to the then Prime Minister or as critical of the functioning of the then Union Government as the prosecution would have the Court believe. The film and all the material relating to it no doubt appear to have vanished into thin air but then neither A 1 nor A 2 can be held responsible therefor, in the absence of proof in that behalf proof which would exclude all reasonable doubt. [594 D G] (iii) A mere identification by a witness of a person in the Court for the first time who was not known to the witness and who had only caught a glimpse of the person, long time before is valueless, in the absence of the operative witness being tested by a previously held Test Identification does not exclude possibility of mistakes in identification. [576 B D]

Appeal No. 495 of 1965. Appeal by special leave from the judgment and decree dated December 22, 1959 of the Punjab High Court, Circuit Bench at Delhi in Regular First Appeal No. 78 D of 1953. Rameshwar Dayal and A. D. Mathur, for the appellants. Veda Vyasa,K. K. fain and H. K. Puri, for respondent No. 6. The Judgment of the Court was delivered by Bhargava, J. The first appellant, Messrs. Delhi Motor Com pany, is a partnership firm (hereinafter referred to as "the firm"), of which the other four appellants Nos. 2 to 5 are partners. Respondent No. 6, New Garage Ltd., is a private limited company (hereinafter referred to as "the Company"), of which respondent 722 No. 1 was the Managing Director, and respondents Nos. 2 to 5 were members of the Board of Directors. The firm brought a ' suit against the Company for possession of part of the building known as "Scindia House" situated in Connaught Circus, New Delhi, on the basis of an agreement of subleases Possession was claimed of a portion of the Show Room on the ground floor, of 1/2 portion of the Balcony, and another portion of the premises which were, in the year 1950, in the possession of Messrs. Kanwar Brothers Ltd. The case put forward by the firm was that the Company was the tenant of Scindia House and was in occupation of the Show Room and other parts of the building, while a, part of it was occupied by Messrs. Kanwar Brothers Ltd. as sub lessee of the Company. According to the firm, the agreement to sub lease, or the sub lease on the basis of which possession was claimed by the firm from the Company, is evidenced by three documents, the first one of which is letter, Ext. P. 1, dated 20th February, 1950, written by K. section Bhatnagar, appellant No. 2, on behalf of the firm, to U. A. Basrurkar, respondent No. 1, who was the Managing Director of the Company. The second document is letter, Ext. P. 2, dated 22nd February, 1950, written by respondent No. 1 Basrurkar to appellant No. 2 Bhatnagar; and the third document is Ext. P. 3, which purports to be notes on agreement arrived at between Basrurkar and Bhatnagar on 22nd February, 1950. The case of the firm was that, though these documents did not purport in so many words to be an agreement of sub lease. to be granted by the Company to the firm, in substance and in fact, the agreement arrived at was of a sub lease in respect of the premises mentioned above. Since, under the Delhi and Ajmer Merwara Rent Control Act 19 of 1947, if a sub lease had been granted by the Company to the firm without the consent of the landlord, the Company would have been liable to ejectment from the premises, the agreement was not made as directly evidencing a sub lease, so that the landlord should not have an opportunity of suing the Company for ejectment. In February, 1950, when the agreement evidenced by these three documents was arrived at, respondent No. 1, U. A. Basrurkar as Director did not have the authority to enter into this transaction on behalf of the Company with the firm and, consequently on 22nd March, 1950, the Board of Directors of the Company, by a resolution Ext. P. 9, authorised the Managing Director to enter into this transaction. Thereafter, the firm came into possession of two portions of the leased property and started its business in them with effect from 1st April, 1950. The two portions of the leased property, which came into the possession of the firm, were a portion of the ShowRoom on the ground floor and a half portion of the Balcony on the first floor. The agreement contained in these letters and, 723 documents also required parties to carry out some other obligations and, according to the firm, it complied with them. In order to avoid the, liability of the Company for ejectment under the Delhi and Ajmer Merwara Rent Control Act, 1947, the agreement was sought to be given the. form of a partnership; and in order to enable the Company to enter into such a transaction, a special resolution Ext. P. 4 was passed on 24th November, 1950 at an Extra ordinary General Meeting of the Share holders of the Company amending the Memorandum of Association of the Company. This amendment was subsequently approved by the District Judge and was registered with the Registrar of Companies. So far as the landlord is concerned, lie was not a party to these t ransactions, though, on 5th April, 1951, the landlord gave a letter Ext. P. 22 recognising the possession of the firm, but he specifically stated in that letter that the firm would be a licensee and not a sub lessee. One other term in the, agreement arrived at was that appellant No. 2, K. section Bhatnagar, was to be taken as a Director of the Company and he was in fact included in the Directors of the Company thereafter. The further case of the firm was that when Messrs. Kanwar Brothers Ltd. vacated the portion of the premises which was included in the sub leases the Company did not give possession of that portion of the leased property to the firm and also started obstructing the use of those portions of the property by the firm of which the firm had secured possession by 1st April, 1950. A stage came when the firm was completely dispossessed from the property ]eased and, ultimately, after giving notices, the firm instituted a suit on 18th June, 1952. The principal prayer in the suit was for delivery of possession in respect of all the three portions of the leased property. Then, there was a claim for damages to the extent of Rs. 10,000/ in respect of loss incurred on account of dispossession and obstruction in use of the leased property at the instance of the Company. Injunctions were also sought restraining the Company from interfering with the rights of the firm and with their uninterrupted use of the leased property. There were further prayers for other consequential injunctions which need not be described in detail. On behalf of the Company and its Directors, the plea put forward was that there was no agreement of sub lease or a completed sub lease between the Company and the firm and that, in fact, all that took place were negotiations for entering into a partnership. Even the agreement for partnership was never completed, so that the firm was not entitled to any relief at all. The trial Court held that the contract evidenced by these documents was an agreement for a sub lease and, since this agreement did not require registration, the firm was entitled to the 724 reliefs claimed on the basis of this agreement. The Company and its Directors appealed to the High Court of Punjab and that Court held that these documents constituted a completed lease or at least an agreement to lease falling within section 2(7) of the Indian Registration Act and, since the lease or the agreement to lease was evidenced by documents in writing and they were unregistered, the lease or the agreement to lease could not be enforced. On this sole ground, the High Court allowed the appeal and dismissed the suit of the firm. The firm has now come up in, appeal to this Court by special leave. The first point urged on behalf of the firm was that, in this case, there was a completed sub lease, but it did not require registration for Iwo reasons. The first reason advanced was that the lease was not evidenced by the documents Exts. P. and P. 3 only, but was, in fact, completed subsequently when, after the resolution of the Board of Directors of the Company, the Company gave possession of the leased property to the firm on or about the 1st April, 1950. The second reason was that, in any case, this lease was not a lease from year to year or for any term exceeding one year or reserving a yearly rent, so that section 107 of the was not applicable and registration was not compulsory. These submissions fail, because the lease, as relied upon by the firm, has to be held to be a lease of immovable property for a term exceeding one year, and such a lease is fully governed by section 107 of the . The firm itself came forward with the case that the rights that were being claimed were under a lease and the lease was in respect of immovable property consisting of the three portions of the Scindia House which have been mentioned above. It was, however, urged that this lease was not for any fixed term at all and was for an indefinite period, so that it could not be held to be a lease from year to year either. It was further submitted that yearly rent had not been reserved in respect of this lease. Even these submissions were made on the basis that the terms of the lease have to be ascertained from the three documents Exts. P. and P. 3 which were relied upon by the firm to claim the relief in the suit. It appears to us that, if these documents are properly interpreted, an inference necessarily follows that the lease, if any, brought into existence by these documents was certainly for a period exceeding one year. Since reliance was placed on these documents on behalf of the firm to urge that there was a completed lease, learned counsel for the firm was asked to point out the provision which fixed the rent payable in respect of the leased property. The only provision, on which he relied to show that rent had, in fact, been agreed upon the fixed, was para 1 of Ext. P. 3 which 725 contains notes on agreement, dated 22nd February, 1950. That paragraph is as follows : "Profit share of party No. 1 would be 10% of net profit of New Delhi business only and will be settled at the end of the 1st closing of the financial year which would be 30th June, 1951. " Accepting this submission that this paragraph lays down the rent payable, it is clear that, under it, the rent payable for the first time would be 10 % of the net profits earned by the firm in its New Delhi business up to 30th June, 1951. The period would naturally begin on the date on which the lease commenced. That date, according to the firm itself, was 1st April, 1950. From these facts it follows that when the rent is to be paid for the first time, it would be an amount of 10% of the net profits earned by the firm in its New Delhi business between 1st April, 1950 and 30th June, 1951, and, naturally enough, the rent will be in respect of the same period. This term, therefore, clearly laid down that the very first payment of rent was to be for a period of one year and three months, so that, even though so further period for the continuance of the lease after 30th June, 1951 was laid down, the lease at least made rent pay able for the first period of fifteen months. The lease was, therefore, at least for a period of fifteen months and, consequently, for a period exceeding one year. Section 107 of the was, thus, clearly applicable and such a lease could not have been validly made, except under a registered instrument. Admittedly, there was no registration of the documents which constituted the lease and consequently, the firm could not claim any rights on the basis of this lease evidenced by unregistered documents. Learned counsel tried to urge that, since in these documents no definite period for the lease was mentioned, we should hold that section 106 of the was applicable and the lease being in respect of immovable property for purposes other than agricultural or manufacturing must be deemed to be a lease from month to month. We are unable to accept this submission, because none of the documents, on which reliance has been placed on behalf of the firm to prove the lease, contains any clause indicating that the tenancy was to be from month to month or the rent was payable monthly. In fact, the indication from para 1 of Ext. P. 3 quoted above is that the rent was to be payable annually, so that the contract itself seems to give an indication that it was to be a lease from year to year and annual rent was payable. These circumstances, however, are immaterial, because we have already indicated earlier our 726 finding that this lease was at least for a minimum period of 15 months and, consequently, section 107 of the becomes applicable, irrespective of the question whether it was a lease from month to month or from year to year. The High Court was, therefore, quite correct in holding that on the basis of this lease the reliefs claimed by the firm could not be granted to it. In these circumstances, an argument was put forward on behalf of the firm that, though this contract to lease had not been registered, the firm could claim possession under it in view of the provisions of section 53A of the , because, in this case, the Company would be debarred from enforcing against the firm any right in respect of that property of which the firm had already taken possession, viz., part of the Show Room and a portion of the Balcony. In our opinion, this argument proceeds on an incorrect interpretation of section 53A. because that section is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession, but do not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease. Section 53A of the is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. is interpretation of section 53A was clearly laid down by their Lordships of the Privy Council in Probodh Kumar Das and Others vs Dantra Tea Company Limited & Others(1). Learned counsel for the firm, however, relied on a decision of the Allahabad High Court in Ram Chander vs Maharaj Kunwar and Others(2). In that case. the lessee, under a registered lease which was detective and (lid not comply with the requirement of section 107 of the , brought a suit against a subsequent purchaser of the house of the lessor on the allegation that the purchaser ha(], in collusion with the Municipal Board, procured the demolition or a portion of the house, and claimed a relief of perpetual injunction retraining the purchaser from demolishing the house or otherwise interfering with the lessee 's rights as such. and for restoration of the demolished portion at the purchaser 's cost. The High Court, in allowing the claim of the lessee, held "Now, in the present case, what is it that the plaintiff is attempting to do ? He is not attempting to set up a transfer which is he has not instituted a suit for the declaration of the validity of the transfer; (1) I.L.R. [1939] All. (1) 66 I.A. 293. 727 he has not instituted a suit in which he claims an order against the defendant directing him to perform any convenant of the transfer. What he is seeking to do is to debar the defendants from interfering with his possession into which he has entered with the consent of his transferor after the execution of a transfer in his favour. He is, in other words, seeking to defend the rights to which he is entitled under section 53A of the . The defendants Nos. 1 and 2 in demolishing part of the property of which the plaintiff had obtained possession were acting suo motu with the aid of the Municipal Board of Moradabad. It is the defendants who are seeking to assert rights covered by the contract. The plaintiff seeks merely to debar them from doing so; the plaintiff is seeking to protect his rights. In a sense, in the proceedings he is really a defendant and we see nothing in the ;terms of section 53A of the to disentitle him from maintaining the present suit. " Without expressing any opinion as to the correctness of the view taken by the Allahabad High Court, we have to point out that the interpretation put on section 53A of the even by that Court is of no assistance to the firm in the present case. In this case, the firm is seeking to enforce rights under the unregistered lease and to seek a decree for possession against the lessor. The Allahabad High Court in that case proceeded on the basis that the plaintiff of that suit was in the position of a defendant and was only seeking to protect his right,; by resort to the provisions of section 53A of the , so that no principle was laid down by the High Court that section 53A is available to a lessee otherwise than as a defence. We are unable to accept the submission that the judgment in that case should be read as recognising a right of a lessee to enforce rights on the basis of an unregistered lease by resort to that provision, of law. In, fact, if that case be interpreted as laying down such a principle, it must be held that it. has been directly over ruled by the decision of the Privy Council in the case of Probodh Kumar Das and Others(1) and is not correct. 'Mat decision may be justified, if at all, on the basis that, though the lessee in that case was a plaintiff, he was actually seeking protection under section 53A of the by being in the real position of a defendant. On the question whether a person, who sues as a plaintiff, may still be regarded as defending the rights 'Sought to be conferred upon him by an unregistered deed, we need express no opinion. In the present case before us, the claim, which was put forward by the firm in the plaint, can by (1) 66 I.A. 293. 728 no means be construed as a mere defence of the firm 's rights. What the firm is actually seeking to do is to enforce the rights under the lease and, in such a case, section 53A of the is clearly inapplicable. Reliance was also placed on behalf of the firm on the deci sion of this Court in Ram Kumar Das vs Jagadish Chandra Deb Dhabal Deb and Another(1), in which case also, a registered Kabuliyat executed by the lessee did not comply with the requirements of section 107 of the , and on the facts of the case it was held that, though under the Kabuliyat the land was leased out for a period of ten years, the lease in fact must be presumed to be from month to month under section 106 of that Act. The facts of that case were, however, quite different. In that case, the terms of the lease were not ascertained from the Kabuliyat in which the period of lease was fixed at 10 years. The terms of the lease were ascertained from other documents, including receipts for rent paid by the lessee to the lessor, and on the basis of that evidence it was found that a lease had come into existence under which rent was being paid monthly. No such circumstances appear in the case before us. In fact, it was at no stage pleaded and no evidence was led to show that, independently on the three documents Exts. P. 1, .P. 2 and P. 3, there was material from which it could be inferred that a lease from month to month had come into existence between the firm and the Company. No such point was urged either in the trial Court or before the High Court and no such finding of fact exists. In these circumstances, section 106 of the would clearly be inapplicable, and the lease has to be held to be for a period exceeding one year for the reasons given by us above. In the alternative, learned counsel for the firm urged that the firm was entitled to contend that these documents Exts. P. 1 to P. 3 constituted an agreement in writing to lease the property in suit and could claim specific performance of this contract. There are three reasons why we are unable to accept this submission. The first is that, in the plaint itself, no specific performance of contract was claimed on behalf of the firm. Though the pleadings included averments about this contract, the relief claimed was for a decree for possession, damages and injunctions. These reliefs could only be claimed on the basis of a completed lease and could not be the reliefs in a suit for specific performance of a contract to lease. The second reason is that, as mentioned by us earlier, the firm itself came forward with the case that the entire contract was not included within these three documents Exts. P. 1 to P. 3, because, at the stage when (1) ; 729 these documents came into existence, the Managing Director of the Company had no authority to enter into such a contract on behalf of the Company and that the contract was only completed subsequently when the Board of Directors passed a resolution authorising the Managing Director to enter into such a contract and actual possession of part of the property was given on or about the 1st April, 1950. The contract being a contract to lease immovable property and unregistered, specific performance of it could not be sought, except under section 27A of the Specific Relief Act. That section, however, applies only if the entire contract is made in writing, while, according to the case put forward on behalf of the firm itself, ' the entire contract was not in writing. The third reason why specific performance of the contract cannot be claimed by the firm under section 27A of the Specific Relief Act is that such a claim under that provision of law is only available to a lessee, when the lessee, in part performance of the contract, has taken possession of the property, or, being already in possession, continues in possession in part performance of the contract. In the present case, the pleas put forward on behalf of the firm itself show that the firm never got possession of the entire property to which the contract related. Possession was taken by the firm of only two items of property, while the firm never obtained possession of the third item of property which was in possession of Messrs. Kanwar Brothers ' Ltd. Clause (b) of section 27A can apply only if possession of the entire property, which is the subject matter of the contract of lease, has been taken by the lessee. The pleadings in the plaint show that, even though the third item of property was vacated by M/s. Kanwar Brothers Ltd. in December, 1950, possession of that property was never obtained by the firm. To meet this objection, it was urged by learned counsel on behalf of the firm that we should interpret section 27A of the specific Relief Act as being applicable even if possession of part of the property, which is the subject matter of the contract, is obtained by the lessee; but we are unable to accept this submission. The language used makes it clear that possession must be obtained of the entire property to which the contract relates. In this connection, it is significant to note that under section 53A of the , a transferor is barred from interfering with the rights of the transferee, even if the transferee gets possession of any part of the property sought to be trans ferred by the unregistered document of transfer. That section specifically uses the expression "taken possession of the property or any part thereof", whereas the words used in section 27A of the Specific Relief Act are : "taken possession of the property". The omission of the words "any part thereof" in section 27A of the Specific Relief Act when compared with the provision in section 53A of the 730 clearly brings out the position that the former section is only applicable when possession of the entire property, which is the subject matter of the contract, has been taken, while the latter section is made applicable even if the lessee takes possession of any part of the property. Consequently, on the facts of the present case, the firm could not claim specific performance of the contract under section 27A of the Specific Relief Act, even if such a claim had been put forward in the plaint. This alternative contention also, therefore, fails. The appeal is, consequently. dismissed, but, in view of the cirucumstances of this case and the conduct of the parties relating to the contract, we direct parties to bear their own costs of the appeal. G.C. Appeal dismissed.

Certain documents were executed between the appellant firm and the respondent company in respect of premises of which the latter was a tenant. According to the appellant these documents were intended to effect a sublease of three portions of the premises in question though in order to avoid consequences under the Delhi and Ajmer Merwara Rent Control Act 10 of 1947 they apparently purported to create a partnership. The firm was actually given possession of two of the three portions thus given to it. After some time the firm was dispossessed by the company of the premises occupied by it and it therefore filed a suit claiming delivery of possession. In defence the company contended that the documents relied upon by the firm did not evidence either a sub lease or a partnership. According to it there were negotiations for a partnership which never fructified. The trial court held that the documents executed by the parties evidenced an agreement for a sub lease and since the agreement did not require registration the firm was entitled to the reliefs claimed by it on the basis of the agreement. In appeal by the company the High Court held that the documents constituted a completed lease of at least an agreement to lease falling within section 2(7) of the Indian Registration Act, and since the lease or the agreement to lease was evidenced by documents in Writing and they were unregistered, the lease or the agreement to lease could not be enforced. On this sole ground, the High Court allowed the appeal and dismissed the suit of the firm, which thereupon, appealed to this Court. HELD : (i) The three documents in question were relied on by the appellant firm itself as evidence of the lease and the terms thereof; the firm could not therefore be heard to say that these documents did not represent the completed lease and did not, for that reason, require registration. [724 C H] (ii) According to the firm 's case based on the said documents rent in the first instance was payable to. the company in the shape of 10% of the profits of the firm for the period 1st April 1950 to 30th June 1951. Therefore the lease that came into existence through these documents was certainly for more than a year. Section 107 of the was thus clearly applicable and such a lease could not have been validly made except under a registered instrument. Admittedly there was no registration of the documents which constituted the lease, and, consequently, the firm could not claim any rights on the basis of this lease evidenced by unregistered documents. [725 B F] (iii) Merely because the ]case was for an indefinite period and related to immovable property which was not used for agricultural or manufacturing purposes it could not be held to be a lease from month to month 721 to which section 106 of the was applicable. There was nothing in the terms of the lease which showed that it was from month to month. [725 F H] Ram Kumar Das vs Jagadish Chandra Deb Dhabal Deb & Anr. ; , distinguished. (iv) Section 53A of the is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession, but does not give any right to the lessee to claim possession or to claim any other right on the basis of an unregistered lease. Section 53A is only available PA a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. [726 C E] In the present case the claim which was put forward by the firm in the plaint, could by no means be construed as a mere defence of the firm 's rights. What the firm was actually seeking to do was to enforce the rights under the lease and, in such a case, section 53A of the was clearly inapplicable. [727 H 728 A] Probodh Kumar Das & Ors. vs Dantmara Tea Company Ltd.,& Ors. I.A. 293, relied on. Ram Chander vs Maharaj Kunwar & Ors., I.L.R. 1939 All. distinguished. (v) Specific performances of the lease could not be enforced because (a) In the plaint no specific performance was claimed by the appellant, (b)The appellant 's own case was that the entire contract was not included in the three written documents, and section 27A of the Specific Relief Act under which only the contract could be enforced requires the whole contract to be in writing; (c) The difference between the words of section 53A of the and section 27A of the Specific Relief Act brings out clearly that the latter is applicable when the entire property under contract has been taken possession of by the lessee in part performance of the contract. In the present case only two out of the three portions of the premises leased out to it were taken possession of by the appellant. [728 G H, 729 H, 730 A B]

N: Criminal Appeal Nos. 416 18 of 1974. Appeals by Special leave from the Judgment and order dated the 23rd/24th August, 1973 of the Bombay High Court in Crl. Appeal Nos. 68,298 & 510 of 1972. 502 N.C. Talukdar, C. V. Subba Rao and R.N. Poddar for the Appellant. O.P. Rana and M.N. Shroff for the State of Maharashtra. S.R. Srivastava for Respondent No. 1 in Crl. A. 416. The Judgment of the Court was delivered by BHAGWATI, J. These appeals by special leave are directed against a common judgment dated 27th August 1973 passed by a single e Judge of the High Court of Bombay in so far as it acquitted the first respondent in Criminal Appeal No. 146 of 1978 respondent No. 1 and 2 in Criminal Appeal No. 147 of 1974 and the first respondent in Criminal Appeal No. 418 of 1974 (hereinafter referred to as the accused) of the offence under Section 135 (1)(a)(ii) of the Customs Act, 1965. The entire controversy between the parties in these appeals turns on the true interpretations of section 135 (1) (a) (ii) and it is therefore not necessary to set out the facts in detail, but in order to appreciate how the question arises for consideration we may briefly reproduce a few relevant facts. On 9th June 1968 at about 2 p.m. Shri Mugve, the Assistant Collector of Customs, who was then Principal Appraisar in the Directorate of Revenue Intelligence, Bombay, received information that a fishing vessel was going to load silver at Ghas Bunder after 9 p.m. On that day and it was going to take the silver to a spot near Khanderi island in order to put it on an Arab Dhow for despatching it to Dubai. On receipt of this information, Shri Mugve kept a watch in a privately owned motor launch in the stream near Ballard Pier about four miles away from the shore. At about 11 p.m. Shri Mugve and the other customs officers accompanying him noted that a heavily loaded fishing vessel was proceeding towards the Khanderi island without navigational lights. They immediately chased the fishing vessel and asked the crew to stop it but instead of stopping the crew increased the speed and tried to run away. The fishing vessel was chased and eventually it was intercepted by Shri Mugve and the other customs officers. On being questioned the Tindel of the fishing vessel made a statement that 194 ingots of silver of the value of Rs. 92 lakhs were being taken towards Khanderi island for being loaded on an Arab Dhow which was going to Dubai. The fishing vessel was thereupon towed to Ballard Pier and 194 ingots of silver found in it were seized under a Panchnama in the reasonable belief 503 that they were being smuggled out of India. The accused who were in the fishing vessel were also prosecuted in the Court of Additional Chief Presidency Magistrate 5th Court Dadar for offences under Section 120 of the Indian Penal Code, Section 135 (1) (a) (ii) of the , Section 5 of the Imports and Exports (Control) Act 1947 and Section 23 (1 A) of the Foreign Exchange Regulation Act 1973. The Additional Chief Presidency Magistrate found the accused guilty of all the offences charged against them and sentenced them to various terms of imprisonment including fine. The accused there upon preferred three appeals in the High Court of Bombay against the order of conviction and sentence passed against them by the Additional Chief Presidency Magistrate. These appeals were heard by a single Judge of the High Court and by a common Judgment dated 27th August 1973 the learned single Judge confirmed the conviction of the accused under Section 120 of the Indian Penal Code and Section 5 of the Imports and Exports (Control) Act 1947 but set aside the conviction under Section 135 (1) (a) (ii) of the and Section 23 (1 A) of the Foreign Exchange Regulation Act 1973. The Assistant Collector of Customs accepted the judgment of the learned single Judge in so far as it acquitted the accused of the offence under Section 23 (1 A) of the Foreign Exchange Regulation Act 1973 but he was aggrieved by that part of the judgment which set aside the conviction under Section 135 (1) (a) (ii) of the and he accordingly preferred the present three appeals with special leave obtained from this Court. Before we set out the rival arguments addressed before us, it would be convenient to reproduce Section 135 (1) (a) (ii) of the . That section reads as follows: 135. Evasion of duty or prohibitions (1) Without prejudice to any action that may be taken under this Act, if any person (a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, he shall be punishable 504 (ii) in any other case, with imprisonment for a term which may extend to (three years) or with fine, or with both. The argument of the prosecution was that on the facts proved in the case the accused were knowingly concerned in fraudulent evasion or attempt at evasion of the prohibition on the export of silver without a licence imposed under the Export Trade Control order 1968 issued by the Central Government under section 3 of the Imports and Exports (Control) Act 1947 and they were therefore guilty of the offence falling under section 135 (1) (a) (ii) which makes it penal if any person "is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under any other law for the time being in force with respect to such goods. " This argument was sought to be met on behalf of the accused by contending that the words "with respect to such goods" occurring at the end of Section 135 (1) (a) (ii) referred to goods on which duty was chargeable as contemplated in the first part of that section and since no duty was chargeable on export of silver, it did not fall within the words "with respect to such goods" and hence fraudulent evasion or attempt at evasion of the prohibition on export of silver without a licence imposed under the Export Trade Control order 1968 issued under section 3 of the Imports and Exports (Control) Act 1947 was not punishable under section 135 (1) (a) (ii). It was this contention urged on behalf of the accused which appealed to the learned single judge of the High Court of Bombay and resulted in the acquittal of the accused. The sole question which therefore arises for consideration on these rival arguments is as to what is the true meaning of the expression "with respect to such goods '. Is it limited only to goods falling within the first part of section 135 (1) (a) (ii), that is goods on which duty is chargeable or does it refer to any goods in respect of which prohibition is imposed under the or any other law for the time being in force. The answer to this question does not in our opinion admit of any doubt, because the language of section 135 (1) (a) (ii) is clear and explicit and one has merely to read the words of the section according to their plain grammatical construction to come to the conclusion that the view taken by the M learned single Judge of the High Court is plainly erroneous. We proceed to give our reasons for saying so, but we may point out straightway that this view taken by the learned single judge of 505 the High Court has been subsequently overruled by a Division Bench of the same High Court in the State of Maharashtra vs Kassam(1). If we analyse and break up the provision enacted in section 135(1) (a) (ii), it will be clear that structurally it is divisible into three parts, namely: 1. If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both. If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under the with respect to such goods, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both. If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under any other law for the time being in force with respect to such goods, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both. The ingredients of the offence under section 135(1) (a) (ii) would clearly be satisfied if the case falls within any one of these three parts. Each of these three parts is distinct and independent of the other two and whether a case falls within any one part or not has to be judged by reference to the ingredients of that part and not of any other part. The ingredients of one part cannot be projected in the other two parts. The first part deals with a case where in relation to any goods a person is knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable on such goods. Obviously, therefore, the first part. postulates that the 506 goods in respect of which the offence is committed must be goods chargeable with duty. But the second and third parts are not concerned with the question whether any duty is chargeable on the goods or not. These two parts speak only of fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under the or any other law for the time being in force in respect of any goods. What these two parts contemplate is that in respect of the goods in question there must be a prohibition imposed under the or any other law for the time being in force it being totally irrelevant whether duty is chargeable on such goods or not, and the accused must be knowingly concerned in any fraudulent evasion or attempt at evasion of such prohibition. The prohibition fraudulently evaded or sought to be evaded may be with respect to "any goods" and it is not necessary that it should be with respect to goods on which duty is chargeable. The expression "with respect to such goods" had obviously to be used at the end of the section because the second and third parts of the section start with the words "if any person is in relation to any goods . knowingly concerned in any fraudulent evasion or attempt at evasion". The words "such goods" have clearly reference to "any goods" at the commencement of the section. These words are not descriptive of the kind of goods to which the first part of the section is applicable. It is totally impermissible, on a plain natural construction of the language used in section, to read these words as importing the requirement that the goods must be chargeable with duty in order to fall within the second or third part of the section. We are therefore of the view that where goods are chargeable to duty and any person is knowingly concerned in any fraudulent evasion or attempt at evasion of such duty, the case would fall within the first part of the section, but where there is a prohibition imposed with respect to any goods under the or any other law for the time being in force, then, irrespective of whether duty is chargeable on such goods or not, any person knowingly concerned in any fraudulent evasion or attempt at evasion of such prohibition, would clearly be covered by the second or third part as the case may be. Here there was clearly a prohibition on export of silver without a licence, imposed by the Export Trade Control order 1968 issued under section 3 of the Imports and Exports (Control) Act 1947 and on the facts established by the prosecution facts which could not be and were not disputed the accused were knowingly concerned in fraudulent evasion or attempt 507 at evasion of such prohibition on export of silver and their case was therefore plainly and indubitably covered by the third part of section A 135(1) (a) (ii). The learned single Judge of the High Court was consequently in error in taking the view that the accused were not guilty of the offence charged under 135(1) (a) (ii). We accordingly allow these appeals preferred by the Assistant Collector of Customs, set aside the order of acquittal passed by the learned single Judge of the High Court and restore the order passed by the Additional Chief Presidency Magistrate convicting the accused under section 135(1) (a) (ii) of the and sentencing them to various terms of imprisonment and fine. P.B.R. Appeals allowed.

The petitioner who was detained in prison for over 14 years after his acquittal filed a habeas corpus petition under article 32 of the Constitution praying for his release on the ground that his detention in the jail was unlawful. He also asked for certain other reliefs including compensation for his illegal detention. When the petition came up for hearing the Court was informed by the respondent State that the petitioner had already been released from the jail. Allowing the petition, ^ HELD: The petitioner 's detention in the prison after his acquittal was wholly unjustified. Article 32 confers power on the Supreme Court to issue directions or orders or appropriate writs for the enforcement of any of the rights conferred by Part III of the Constitution. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders of release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its a violators in the payment of monetary compensation. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to their rights. [513 A C, 514 B E] In the circumstances of the instant case the refusal to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so grossly 509 violated. Therefore, as an interim measure the State must pay to the petitioner a further sum of Rs. 30,000 in addition to the sum of Rs 5,000 already paid by it. This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials. [514 B,F,H]

No. 528, of 1959. Appeal from the judgment and order dated September 20, 1957, of the former Bombay High Court in I.T.R. No. 15 of 1957. Hardayal Hardy and D. Gupta, for the appellant. R. J. Kolah, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondent. 635 1960. November 24. The Judgment of the Court was delivered by HIDAYATULLAH, J. The Commissioner of Income tax, Bombay City 11, has filed this appeal with a certificate under section 66A(2) of the Income tax Act, against the judgment and order of the High Court of Bombay dated September 20, 1957, in Income tax Reference No. 15 of 1957. The question referred to the High Court for its opinion by the Income tax Appellate Tribunal, Bombay was: "Whether the assessee is entitled to a deduction of Rs. 1,350 and Rs. 18,000 from his total income of the previous year relevant to the assessment years, 1953 54, 1954 55?" The assessee, Sitaldas Tirathdas of Bombay, has many sources of income, chief among them being property, stocks and shares, bank deposits and share in a firm known as Messrs. Sitaldas Tirathdas. He follows the financial year as his accounting year. For the assessment years 1953 54 and 1954 55, his total income was respectively computed at Rs. 50,375 and Rs. 55,160. This computation was not disputed by him, but he sought to deduct therefrom a sum of Rs. 1,350 in the first assessment year and a sum of Rs. 18,000 in the second assessment year on the ground that under a decree he was required to pay these sums as maintenance to his wife, Bai Deviben and his children. The suit was filed in the Bombay High Court (Suit No. 102 of 1951) for maintenance allowance, separate residence and marriage expenses for the daughters and for arrears of maintenance, etc. A decree by consent was passed on March 11, 1953, and maintenance allowance of Rs. 1,500 per month was decreed against him. For the account year ending March 31, 1953 only one payment was made, and deducting Rs. 150 per month as the rent for the flat occupied by his wife and children, the amount paid as maintenance under the decree came to Rs. 1,350. For the second year, the maintenance at Rs. 1,500 per month came to Rs. 18,000 which was claimed as a deduction. 636 No charge on the property was created, and the matter does not fall to be considered under section 9(1)(iv) of the Income tax Act. The assessee, however, claimed this deduction on the strength of a ruling of the Privy Council in Bejoy Singh Dudhuria vs Commissioner of Income tax (1). This contention of the assesses was disallowed by the Income tax Officer, whose decision was affirmed on appeal by the Appellate Assistant Commissioner. On further appeal, the Tribunal observed: "This is a case, pure and simple, where an assessee is compelled to apply a portion of his income for the maintenance of persons whom he is under a personal and legal obligation to maintain. The Income tax Act does not permit of any deduction from the total income in such circumstances. " The Tribunal mentioned in the statement of the case that counsel for the assessee put his contention in the following words: "I claim a deduction of this amount from my total income because my real total income is whatever that is " computed, which I do not dispute, less the maintenance amount paid under the decree. " The assessee appears to have relied also upon a decision of the Lahore High Court in Diwan Kishen Kishore vs Commissioner of Income tax(2). The Tribunal, however, referred the above question for the opinion of the High Court. The High Court followed two earlier decisions of the same Court reported in Seth Motilal Manekchand vs Commissioner of Income tax (3) and Prince Khanderao Gaekwar vs Commissioner of Income tax (4), and held that, as observed in those two cases, the test was the same, even though there was no specific charge upon property so long as there was an obligation upon the assessee to pay, which could be enforeed in a Court of law. In Bejoy Singh Dudhuria 's case (1), there was a charge for maintenance created against the assessee, and the Privy Council had observed that the income must be deemed to have never reached that assessee, (1) (3) (2) (4) 637 having been diverted to the maintenance holders. In the judgment under appeal, it was held that the income to the extent of the decree must be taken to have been diverted to the wife and children, and never became income in the hands of the assessee. The Commissioner of Income tax questions the correctness of this decision and also of the two earlier decisions of the Bombay High Court. We are of opinion that the contention raised by the Department is correct. Before we state the principle on which this and similar cases are to be decided, we may refer to certain rulings, which illustrate the aspects the problem takes. The leading case on the subject is the decision of the Judicial Committee in Bejoy Singh Dudhuria 's case(1). There, the stepmother of the Raja had brought a suit for maintenance and a compromise decree was passed under which the stepmother was to be paid Rs. 1,100 per month, which amount was declared a charge upon the properties in the hands of the Raja, by the Court. The Raja sought to deduct this amount from his assessable income, which was disallowed by the High Court at Calcutta. On appeal to the Privy Council, Lord Macmillan observed as follows: "But their Lordships do not agree with the learned Chief Justice in his rejection of the view that the sums paid by the appellant to his step mother were not 'income ' of the appellant at all. This in their Lordships ' opinion is the true view of the matter. When the Act by Section 3 subjects to charge 'all income ' of an individual, it is what reaches the individual as income which it is intended to charge. In the present case the decree of the court by charging the appellant 's whole resources with a specific payment to his step mother has to that extent diverted his income from him and has directed it to his stepmother; to that extent what he receives for her is not his income. It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands." (1) 81 638 Another case of the Privy Council may well be seen in this connection. That case is reported in P. C. Mullick vs Commissioner of Income tax, Bengal (1). There, a testator appointed the appellants as executors and directed them to pay Rs. 10,000 out of the income on the occasion of his addya sradh. The executors paid Rs. 5,537 for such expenses, and sought to deduct the amount from the assessable income. The Judicial Committee confirmed the decision of the Calcutta High Court disallowing the deduction, and observed that the payments were made out of the income of the estate coming to the hands of the executors and in pursuance of an obligation imposed upon them by the testator. It observed that it was not a case in which a portion of the income had been diverted by an over riding title from the person who would have received it otherwise, and distinguished the case in Bejoy Singh Dudhuria 's case (2). These cases have been diversely applied in India, but the facts of some of the cases bring out the distinction clearly. In Diwan Kishen Kishore vs Commissioner of Income tax (3), there was an impartible estate governed by the law of primogeniture, and under the custom applicable to the family, an allowance was payable to the junior member. Under an award given by the Deputy Commissioner acting as arbitrator and according to the will of the father of the holder of the estate and the junior member, a sum of Rs. 7,200 per year was payable to the junior member. This amount was sought to be deducted on the ground that it was a necessary and obligatory payment, and that the assessable income must, therefore, be taken to be pro tanto diminished. It was held that the income never became a part of the income of the family or of the eldest member but was a kind of a charge on the estate. The allowance given to the junior member, it was held, in the case of an impartible estate was the separate property of the younger member upon which he could be assessed and the rule that an allowance given by the head of a Hindu coparcenary to its members by way of maintenance was liable to be assessed (1) (2) (3) 639 as the income of the family, had no application. It was also observed that if the estate had been partible and partition could have taken place, the payment to the junior member out of the coparcenary funds would have stood on a different footing. In that case, the payment to the junior member was a kind of a charge which diverted a portion of the income from the assessee to the junior member in such a way that it could not be said that it became the income of the assessee. In Commissioner of Income tax, Bombay vs Makanji Lalji (1), it was stated that in computing the income of a Hindu undivided family monies paid to the widow of a deceased coparcener of the family as maintenance could not be deducted, even though the amount of maintenance had been decreed by the Court and had been made a charge on the properties belonging to the family. This case is open to serious doubt, because it falls within the rule stated in Bejoy Singh Dudhuria 's case (2); and though the High Court distinguished the case of the Judicial Committee, it appears that it was distinguished on a ground not truly relevant, namely, that in Bejoy Singh Dudhuria 's case (2) the AdvocateGeneral had abandoned the plea that the stepmother was still a member of the undivided Hindu family. It was also pointed out that this was a case of assessment as an individual and not an assessment of a Hindu undivided family. In Commissioner of Income tax, Bombay vs D. R. Naik (3), the assessee was the sole surviving member of a Hindu undivided family. There was a decree of Court by which the assessee was entitled to receive properties as a residuary legatee, subject, however, to certain payments of maintenance to widows. The widows continued to be members of the family. It was held that though section 9 of the Income tax Act did not apply, the assessee 's assessable income was only the balance left after payment of the maintenance charges. It appears from the facts of the case, however, that there was a charge for the maintenance (1) (2) (3) 640 upon the properties of the assessee. This case also brings out correctly the principles laid down by the Judicial Committee that if there be an overriding obligation which creates a charge and diverts the income to some one else, a deduction can be made of the amounts so paid. The last case may be contrasted with the case reported in P. C. Mullick and D. C. Aich, In re(1). There, under a will certain payments had to be made to the beneficiaries. These payments were to be made gradually together with certain other annuities. It was held that the payments could only be made out of the income received by the executors and trustees from the property, and the sum was assessable to income tax in the hands of the executors. It was pointed out that under the wilt it was stated that the amounts were to be paid "out of the income of my property", and thus, what had been charged was the income of the assessees, the executors. The case is in line with the decision of the Privy Council in P. C. Mullick vs Commissioner of Income tax, Bengal(2). In Hira Lal, In re,(3) there was a joint Hindu family, and under two awards made by arbitrators which were made into a rule of the Court, certain maintenance allowances were payable to the widows. These payments were also made a charge upon the property. It was held that inasmuch as the payments were obligatory and subject to an overriding charge they must be excluded. Here too, the amount payable to the widows was diverted from the family to them by an overriding obligation in the nature of a charge, and the income could not be said to accrue to the joint Hindu family at all. In Prince Khanderao Gaekwar vs Commissioner of Income tax (4), there was a family trust out of which two grandsons of the settlor had to be paid a portion of the income. It was provided that if their mother lived separately, then the trustees were to pay her Rs. 18,000 per year. The mother lived separately, and two deeds were executed by which the two grandsons agreed to pay Rs. 15,000 per year to the mother, (1) (3) (2) (4) 641 and created a charge on the property. The sons having paid Rs. 6,000 in excess of their obligations, sought to deduct the amount from their assessable income, and it was allowed by the Bombay High Court, observing that though the payment was a voluntary payment, it was subject to a valid and legal charge which could be enforced in a Court of law and the amount was thus deductible under section 9(1)(iv). There is Do distinction between a charge created by a decree of Court and one created by agreement of parties, provided that by that charge the income from property can be said to be diverted so as to bring the matter within section 9(1)(iv) of the Act. The case was one of application of the particular section of the Act and not one of an obligation created by a money decree, whether income accrued or not. The case is, therefore, distinguishable from the present, and we need not consider whether in the special circumstances of that case it was correctly decided. In V. M. Raghavalu Naidu & Sons vs Commissioner of Income tax (1), the assessees were the executors and trustees of a will, who were required to pay maintenance allowances to the mother and widow of the testator. The amount of these allowances was sought to be deducted, but the claim was disallowed. Satyanarayana Rao and Viswanatha Sastri, JJ. distinguished the case from that of the Privy Council in Bejoy Singh Dudhuria (2). Viswanatha Sastri, J. observed that the testator was under a personal obligation under the Hindu law to maintain his wife and mother, and if he had spent a portion of his income on such maintenance, he could not have deducted the amount from his assessable income, and that the position of the executor was no better. Satyanarayana Rao, J. added that the amount was not an allowance which was charged upon the estate by a decree of Court or otherwise and which the testator himself had no right or title to receive. The income which was received by the executors included the amount paid as maintenance, and a portion of it was thus applied in discharging the obligation. (1) (2) 642 The last cited case is again of the Bombay High Court, which seems to have influenced the decision in the instant case. That is reported in Seth Motilal Manekchand vs Commissioner of Income tax(1). In that case, there was a managing agency, which belonged to a Hindu joint family consisting of A, his son B and A 's wife. A partition took place, and it was agreed that the managing agency should be divided, A and B taking a moiety each of the managing agency remuneration but each of them paying A 's wife 2 as. 8 pies out of their respective 8 as. share in the managing agency remuneration. Chagla, C. J. and Tendolkar, J. held that under the deed of partition A and B had really intended that they were to receive only a portion of the managing agency commission and that the amount paid to A 's wife was diverted before it became the income of A and B and could be deducted. The learned Judge observed at p. 741 as follows: "We are inclined to accept the submission of Mr. Kolah that it does constitute a charge, but in our opinion, it is unnecessary to decide this question because this question can only have relevance and significance if we were considering a claim made for deduction under section 9(1)(iv) of the Income tax Act where a claim is made in respect of immovable property where the immovable property is charged or mortgaged to pay a certain amount. It is sufficient for the purpose of this reference if we come to the conclusion that Bhagirathibai had a legal enforceable right against the partner in respect of her 2 annas and 8 pies share and that the partner was under a legal obligation to pay that amount. " These are the cases which have considered the problem from various angles. Some of them appear to have applied the principle correctly and some, not. But we do Dot propose to examine the correctness of the decisions in the light of the facts in them. In our opinion, the true test is whether the amount sought to be deducted, in truth, never reaches the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the (1) 643 decisive fact. There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of one 's own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable. In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own. The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of another 's income. The matter in the present case would have been different, if such an overriding charge had existed either upon the property or upon its income, which is not the case. In our opinion, the case falls outside the rule in Bejoy Singh Dudhuria 's case and rather falls within the rule stated by the Judicial Committee in P. C. Mullick 's case For these reasons, we hold that the question referred to the High Court ought to have been answered in the negative. We, accordingly, discharge the answer given by the High Court, and the question will be answered in the negative. The appeal is thus allowed with costs here and in the High Court. Appeal allowed.

A consent decree was passed against the assessee awarding maintenance to his wife and children. The decree did not create any charge upon the income of the assessee. The assessee claimed in the assessment of income tax deduction of the amount paid under the decree from his total income. Held, that the assessee was not entitled to the deduction. Where by the obligation income was diverted by an overriding title before it reached the assessee, it was deductible; but where the income was required to be applied to discharge an obligation after such income reached the assessee, it was not deductible. The true test was whether the amount sought to be deducted, in truth, never reached the assessee as his income. In the present case, the wife and children of the assessee received a portion of the income of the assessee, after the assessee had received the income as his own. Bejoy Singh Dudhuria vs Commissioner of Income tax, (1933) I I.T.R. 135, not applicable. P. C. Mullick vs Commissioner of Income tax, Bengal, , applied. Diwan Kishen Kishore vs Commissioner of Income tax, , Seth Motilal Menekchand vs Commissioner of Income tax, , Prince Khanderao Gaekway vs Commissioner of Income tax, , Commissioner of Income tax, Bombay vs Makanji Lalji, , Commissioner of Income tax, Bombay V. D. R. Naik, , D. C. Aich, It; re, , Hira Lal, In re, and V. M. Raghavalu Naidu & Sons vs Commissioner of Income tax, , referred to

tion (Civil) No. 263 of 1979. (Under Article 32 of the Constitution of lndia. ) D.D. Thakur, A. Minocha, Mrs. Veena Minocha, G. section Vashisht, T.R. Arti and B.S. Bali for the Petitioners. Kuldeep Singh, Additional Solicitor General, C. M. Nayar and C.V. Subba Rao for Respondent Nos. 1 and 2. Kuldeep Singh, Additional Solicitor General, Ashok Srivastava and Ms. A. Subhashini for Respondent No. 3. PG NO 775 Ms. A. Subhashini Advocate for the Respondent No. 11. A. k. Ganguli, A. Mariarputha and Mrs. Aruna Mathur for the Respondents Nos. 6, 7, 4 and 10. The Judgment of the Court was delivered by KANIA, J. This Writ Petition owes its origin to a dispute between different groups of employees of the Delhi High Court, claiming better rights of promotion for themselves, a type of dispute too common in services these days. The present Writ Petition has been filed by some Superintendents in the Delhi High Court objecting to their being treated on a par with the Private Secretaries to learned judges and Court Masters and being included in a joint seniority List along with them, particularly as far as the promotion to the next higher post of Assistant Registrar is concerned. In order to appreciate the controversy before us, it is necessary to keep in mind the background in which the dispute has originated. Prior to the Constitution of the Delhi High Court in 1966, there was a Circuit Bench of the Punjab High Court sitting at Delhi. By Act 26 of 1966, Parliament established an independent High Court for the Union Territory of Delhi. By an order dated October 31, 1966, effective from October 31, 1966, the Government of lndia created a staff for the said High Court. The letter of the Government of india, which is Annexure A to the Petition, shows that the President of India sanctioned the creation of certain posts for the Delhi High Court with effect from October 31, 1966 or from the date of setting up of the High Court, whichever was later, upto February 28, 1967. Amongst these posts, there was a post of an Assistant Registrar having a pay scale of Rs.500 30 800 plus (scales of pay and dearness allowance as admissible in Punjab). Among the other posts created were six posts of Private Secretaries to Hon 'ble Judges of the High Court in the pay scale of Rs. 500 20 450 25 475, six posts of Readers and seven posts of Superintendents. The pay scale of all these posts was the same, namely, Rs.350 20 450 25 475. The Delhi High Court started functioning with effect from October 31, 1966. The staff of the Punjab and Haryana High Court working in Delhi was, for the time being, treated as on deputation to the Delhi High Court till they were permanently absorbed in the Delhi High Court. From the time of its formation till 1971, the Delhi High Court had no rules of its own regarding conditions of service or regarding the salary or seniority in respect of its staff. Section 7 of the (Act 26 of 1966), in brief, provided that, PG NO 776 subject to the provisions of the said Act, the law in force immediately before the Appointed Day (31.10.1966) with respect to practice and procedure in the High Court of Punjab shall, with the necessary modifications, apply in relation to the Delhi High Court and conferred powers on the High Court of Delhi to make rules and orders with respect to its practice and procedure, such powers being the same as exerciseable by the High Court of Punjab immediately before the Appointed Day. There was a proviso which was to the effect that any rules or orders which were in force immediately before the Appointed Day with respect to practice and procedure in the High Court of Punjab shall, until varied or revoked by rules or orders made by the High Court of Delhi, apply with the necessary modifications in relation to practice and procedure in the High Court of Delhi as if made by that High Court. The Delhi High Court started in 1966 with four Hon 'ble Judges including the Chief Justice and among its staff inter alia were four Superintendents, four Readers and three Private Secretaries against the sanctioned strength. Under the powers conferred by Article 229 of the Constitution, the Chief Justice of the Delhi High Court framed the Delhi High Court Officers and Servants (Salaries , leave, Allowances and Pension) Rules, 1970 (hereinafter referred to as "the Salary Rules of 1970") and the Delhi High Court Staff (Seniority) Rules, 1971 (hereinafter referred to as "the Seniority Rules of 1971"). Under the Salary Rules of 1970, the scale of Pay for Superintendents, Readers and Private Secretaries was the same, namely, Rs.350 20 475. With the increase of work and the extension of the territorial jurisdiction of the Delhi High Court, there was an increase in the number of Judges as well as staff of the Court. According to the Petitioners, by March 1979, there were 21 Private Secretaries, 21 Readers and 13 Superintendents in the Delhi High Court. It appears that because of the increase in the number of Judges, the increase in the post of Private Secretaries and Readers was at a somewhat higher rate than that in the posts of Superintendents. We are informed that in March 1988, the position was that there were 27 Private Secretaries, 30 Readers and 24 Superintendents in the same pay scale. We may mention that Readers are now called Court Masters. We may at this stage consider the Seniority Rules of 1971, Rule 3 of the said Rules provides that inter se seniority of confirmed employees in any category of the High Court staff shall be determined on the basis of the date of confirmation. Rule 5 of the said rules runs as follows : "Joint inter se seniority of confirmed employees in categories of equal status posts shall be determined PG NO 777 according to their dates of confirmation in any of those categories. " Rule 9, with which we are not directly concerned, provides that certain credit for purposes of seniority shall be given to an employee who before his appointment as Assistant in the High Court was working on any of the posts mentioned in Clause IV of Schedule II. Rule 2 contains certain definitions for purposes of the said Rules. Rule 2(ii) runs as follows: "`Equated post ' means any of the posts shown as equated posts, from time to time, in Schedule I to these rules". Clause (iii) of the said Rule runs as follows : " 'Equal status posts ' means the posts shown to be of equal status, from time to time, in Schedule II to these rules". Item (ii) of Schedule I under Rule 2 runs as follows: "Equated Posts: (i) x x x x x x (ii) Judgment writers/Personal Assistant to Judges of Punjab & Haryana High Court (from 7.11. 1964] and Private Secretaries to Judges. " The relevant portion of Schedule II (See Rule 2) runs thus: "Equal Status Posts: (i) x x x x (ii) Superintendents, Court Masters, Private Secretaries to Jugdes . . (iii) x x x x (iv) x x x x (v) x x x x In exercise of the powers vested in the Chief Justice of the Delhi High Court, he framed certain rules which were notified on 15th September, 1972, called Delhi High Court Establishment (Appointment and conditions of Service) Rules, 1972 (hereinafter referred to as "Establishment Rules of PG NO 778 1972"). Rule 7 of the said Rules runs as follows: "7. Mode of Appointment. Except for appointment on officiating, temporary or ad hoc basis, the mode of and qualifications for appointment to the posts specified in Schedule II to these rules shall be as stated therein. " The material portion of Schedule II runs as follows: Schedule II (See Rule 7) S.No. Category Minimum qualifi Mode of of post cations prescribed appointment for appointment to the posts "1 x x x 1a x x x 2 x x x 3 Assistant Registrar By selection on merit (Selection post) from confirmed offi cers of categories 5 6 & 7 of Class IT mentioned in Schedule 1. x x x x x x x" We may mention that Schedule I framed under Rule 4 mentions the various categories of posts. Category of comprises Assistant Registrars, Categories 5, 6 and 7 of Class II are Superintendents, Court Masters and Private Secretaries to Judges. respectively. The above provisions make it clear that certain posts were treated as equated posts under Schedule I and certain posts were treated as equal status posts under Schedule I1 to the said Seniority Rules of 1971. It is clear that these provisions were made with a view to provide transferability among persons holding these posts and to provide for channels of promotion to certain categories of employees who did not enjoy a chance for promotion earlier with the result that there was stagnation and frustration in the categories concerned. It may be noticed here that the posts of Judgment PG NO 779 Writers, Personal Assistants to Judges and Private Secretaries to Judges have been treated as equated posts and the posts of Superintendents, Court Masters and Private Secretaries to Judges have been treated as equal status posts. Rule 5 of the Seniority Rules of 1971 set out by us earlier provides for a joint seniority list of confirmed employees in categories of equal status posts presumably with the same object as aforestated. It may be noticed that prior to October 31, 1966 the position relating to pay scales was as follows: 1. Superintendent 50 20 500 30 650 Gazetted Post 2. Reader 250 20 450 Non Gazetted Post 3. P.S. (Private Secretary) 150 10 300 Non Gazetted Post. Later on, there was a revision of scales of pay of these posts. It is not necessary to consider all these revisions, but it may be noticed that at the relevant time and thereafter under the Salary Rules of 1970 the Scales of Pay of the said three posts are the same, namely, Rs.350 25 575. The said Rules have been framed as early as 1970 and the same have not been challenged before us. It was under the Seniority Rules of 1971 that the said posts were treated as equal status posts and Mr. Thakur, learned Counsel for the Petitioners made it clear that he was not challenging this portion of the Rules. ln fact, in his opening he made it clear that he would not challenge any of the aforesaid Rules set out earlier. However, we must mention that in the rejoinder an attempt was made to challenge the joint seniority list which would imply a challenge to Rule 5 of the said Seniority Rules of 1971. A joint seniority list of Superintendents. Readers and Private Secretaries was framed on May 8, 1972 but it was quashed on February 24th, 1975 when the seniority list of Readers was challenged. The seniority list of Readers was quashed on October 10, 1975. A direction was given in both the cases when the said joint seniority list was quashed that a fresh list should be prepared in accordance with the observations made in the judgment whereby the said list was quashed. Accordingly, fresh lists were made after hearing objections thereto and were finalized in December, 1976. Occasions then arose for temporary appointments to the posts of Assistant Registrars. That the appointments to be made were temporary is not or much consequence as later the confirmations were made in that very order. Under Rule 7 of the Establishment Rules of 1972 appointments to the post of PG NO 780 Assistant Registrar are to be made by selection on merit from the three categories, Superintendents, Readers and Private Secretaries. It appears that it was felt that it would not be feasible to consider all the incumbents of the posts in the said three categories because a proper selection among such a large group would be impracticable and extremely difficult. This appears to be the basis underlying the decision of the Administrative Judges at Annexure XVI to the Petition. For delimiting the zone of consideration or field of choice in making the appointments which had to be made by selection on merits, after considering various modes for delimiting the zones of consideration, it was decided at the meeting of the Administrative Committee of the Judges of the Delhi High Court held on February 3, 1977 that the zone of consideration or field of choice should be limited to the first five names in the finalized joint seniority list of Superintendents, Readers and Private Secretaries, that is, for each post of Assistant Registrar to be filled in by selection on merits, five persons from the finalized joint seniority list had to be considered in order of seniority, and the selection between them made on merits. In other words, if appointments were to be made to two posts of Assistant Registrars, the first ten employees in the joint seniority list would be included in the zone of consideration. It was further decided that no written test or interview was to be held for the purposes of selection. We are not referring here to any individual promotion made on this basis because the grievance made is against this mode of selection itself and not against any particular promotion. We may mention here that, as set out earlier, when the Delhi High Court started functioning, the authorised strength in the relevant categories was six Private Secretaries to the Judges, six Readers (same as Court Masters) and seven Superintendents. With the passage of time the number of posts in three categories has risen fairly sharply. As aforestated by March 1979, according to the Petitioners, there were 21 Private Secretaries, 21 Readers and 13 Superintendents and by March 1988 there were 37 Private Secretaries to Judges, 30 Readers or Court Masters and 33 Superintendents. Although there is a little controversy regarding these figures, it is not of any consequence in the case before us. All that need be noticed is that the increase in the number of Readers and Private Secretaries has been higher percentagewise than that in the case of Superintendents because with increasing work and increase in the number of Judges, the number of Private Secretaries and Readers had necessarily to rise in proportion whereas the number of Superintendents had not gone up quite in the same proportion. lt may be mentioned that there was some grievance made regarding differences in the method of selection employed on different occasions when vacancies arose of requiring PG NO 781 temporary appointments to the posts of Assistant Registrars. There is, however, not much substance in that grievance as we shall point out later. The first submission of Mr. Thakur, learned Counsel for the petitioners is that there is a violation of Article 14 of the Constitution in treating the posts of Superintendents, Court Masters or Readers and Private Secretaries to the Judges as equal status posts. It was urged by him that the sources of recruitment to these posts were not identical and so also the qualifications required for appointments to these posts. He also pointed out that the duties of the incumbents of these posts were different. It was submitted by him that in treating these posts as equal status posts unequals were treated equally and hence the rule of equality was violated. In appreciating this submission, it must be borne in mind that it is an accepted principle that where there is an employer who has a large number of employees in his service performing diverse duties, he must enjoy a certain measure of discretion in treating different categories of his employees as holding equal status posts or equated posts, as questions of promotion or transfer of employees inter so will necessarily arise for the purpose of maintaining the efficiency of the organisation. There is, therefore, nothing inherently wrong in an employer treating certain posts as equated posts or equal status posts provided that, in doing so, he exercises his reasonably and does not violate the principles of equality enshrined in Articles 14 and 16 of the Constitution. it is also clear that for treating certain posts as equated posts or equal status posted, it is not necessary that the holders of these posts must perform completely the same functions or that the sources of recruitment to the posts must be the same nor is it essential that qualifications for appointments to the posts must be identical. All that is reasonable required is that there must not be such difference in the pay scales or qualifications of the incumbents of the posts concerned or in their duties or responsibilities or regarding any other relevant factor that it would but unjust to treat the posts alike or, in other words, that posts having substantially higher pay scales or status in service or carrying substantially higher responsibilities and duties or otherwise distinctly superior are not equated with posts carrying much lower pay scales or substantially lower responsibilities and duties or enjoying much lower status in service. As far as the case before us is concerned, although Mr. Thakur, learned Counsel for the Petitioners has urged that aforesaid posts, namely, Superintendents, Private Secretaries and Readers could not be treated as equated PG NO 782 posts or equal status posts, he was unable to point out to us specifically any such difference in respect of the requisite qualifications of the holders of different categories of these posts or regarding the duties and responsibilities carried by these posts as were so marked or significant that it would be unfair or violative of the rule of equality to treat these posts as equal status posts. In fact, it may be mentioned that at one stage in his opening, Mr. Thakur specifically stated that he did not challenge the vires of any of the said Seniority Rules of 1971.If that is so, we fail to see how he can challenge the aforesaid posts being treated as equal status posts as that has been done under the said Seniority Rules of 1971 which have been framed by the Chief Justice in exercise of the powers conferred upon him under Article 224 of the Constitution of India. Even if one is to examine the contention on merits, we are afraid, it must fail. A perusal of items 5, 6 and 7 of Schedule I to the said Salary Rules of 1970 shows that under the said Rules which were framed as early as 1970, the salary scale of Superintendents, Court Masters (Readers) and Private Secretaries is the same, viz., Rs.350 25 575. There is, therefore, no difference in the scales of salary. As far as the qualifications for appointment are concerned, under rule 7 it is provided that these qualifications are as specified in Schedule 11. items 4, 5 and 6 of the said Schedule inter alia provide for the qualifications for appointments to the said posts and it is undoubtedly true that the qualifications required for appointment to these posts are not identical. In the case of Superintendents, it appears, very briefly stated, that appointments to 25 per cent of these posts are to be made on the basis of seniority cum suitability from the joint seniority list of categories 9, 10,11, 13, 14 and 15 of Class 111 mentioned in Schedule 1 and 75 per cent of the posts are to be filled by selection on merit from the same categories. The categories of posts from which promotions of selections can be made to the posts of Court Masters are substantially the same. As far as the Private Secretaries are concerned, the mode of appointment is by selection and the qualifications prescribed are that a graduate degree is required for appointment of the said post and a further requirement is a speed of not less than 120 words per minute in shorthand and 45 words per minute in type writing. A perusal of the said provisions shows that the qualifications required for appointment to the post of a Private Secretary are certainly higher than the qualifications required for appointment to the post of a Superintendent or a Court Master although from the latter two categories, probably, more experience would be required. Thus, one fails to see how any grievance can be made by the Superintendents on this score. As far as the duties these posts carry are concerned, undoubtedly they are not the Same. But Rule 8(c) of the Establishment Rules of PG NO 783 1972 provides that any person appointed to the post in one category may be transferred to other category. The validity of this Rule has not been challenged before us. This would show tat even if the duties and responsibilities attached to these posts are not the same, they were not so materially different as to render it inequitable that these posts should be treated on the same footing for the purposes of promotion and transfer. It may be that because of the requirement that a Court Master must be a graduate and having a certain typing speed, Superintendents could not be generally transferred to the posts of Private Secretaries. But one fails to see how any grievance can be made on that score by the Superintendents. The view which we ave taken, as set out earlier, finds support from the decision of this Court in V.T. Khanzode & ors. vs Reserve Bank of India & Anr., rendered by a Bench comprising three learned Judges of this Court. In that case, by Administrative Circular No. 8 dated Administrative Circular No. 8 dated January 7,1978 the Reserve Bank of India stated that it had decided to combine the seniority list of all officers on the basis of their total length of service (including officiating service ) in Group I (Section A), Group II and Group 111. The seniority of all officers in each of the three Groups was to be combined with effect from May 22, 1974 on the basis of their total length of service, including officiating service, in the grade in which they were then posted on a regular basis. The Circular introduced combined seniority with retrospective effect from May 22, 1974 (the date of an earlier Administrative Circular No. 15) as it was "fair and equitable to the officers as a class". The effect of this decision was that the group wise system of seniority which was in existence in the bank for more than 27 years stood substituted by a combined seniority for officers in the aforesaid grades with retrospective effect. This adversely affected the existing seniority of many officers, particularly those in Group I. The validity of this Administrative Circular was challenged. This Court held that the said Administrative Circular No. 8 and the draft combined seniority list prepared pursuant to it did not violate the rights of the petitioners under Articles 14 and 16 of the Constitution whether there should be a combined seniority in different cadres or groups is a matter of policy which does not attract the applicability of groups is am pointed out that the past events showed the equality clause. The Court pointed out that the past events sowed that the various Departments of the Reserve Bank of India were grouped and regrouped from time to time. Such adjustments in the administrative affairs of the Bank were a necessary sequel to the growings of new situations which are bound to arise in any developing economy. The Court pointed PG NO 784 out further that no scheme governing service matters can be fool proof and some section or the other of employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. Arbitrariness, irrationality, perversity and mala fides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employees is not evidence of these. This decision clearly leads to a conclusion that grouping and regrouping of different categories of employees is inevitable in a large organisation with a view of meeting changing situations and needs of a live organisation. Merely because the chances of promotion of some employees are adversely affected by such grouping or regrouping, that does not lead to a conclusion that it is against the law. We may point out that in the case before us, there is no contention urged before us that the equating of posts or the combined seniority list was promoted by any mala fides. We fail to see how the combined seniority list or the treating of the said posts as equal status posts can be said to be arbitrary in the absence of any material and, particularly, in view of the fact that the learned Chief Justice and the learned Judges of the Delhi High Court considered the facts and took the view that it was necessary in order to provide for transfers from one department to another and to provide adeq uate promotional opportunities to various sections of the employees of the Delhi High Court. Apart from this, it must be observed that the challenge to the said posts being treated as equal status posts comes much too late to the entertained in the writ petition. These posts were treated as equal status posts under Rule 2 read with the Schedules to the said Seniority Rules of 1971 and certain promotions have also been made under the said Rules. These Rules became effective in 1971 at is much to late to seek to challenge them in 1979, long after Rule have been given effect to. It may be mentioned that, although they did make representations, the petitioners chose to file the Writ Petition only as late as in 1979. In our view, the challenge to the Rules providing for the said posts being posts being treated as equated posts or equal status posts can be negatived on the ground of delay or latches apart from other considerations. The next submission of learned Counsel, Mr. Thakur, which he stated was his main submission, is that under the relevant Rules an appointment to the post of Assistant Registrar has to be made by selection from Superintendents. Private Secretaries and Readers or Court Masters and hence all employees holding these posts in a permanent capacity PG NO 785 must be considered to be eligible and within the zone of consideration for selection to these posts. It was not open to the learned Chief Justice, Respondent No. 1 herein, to limit that zone of consideration in any manner. He drew our attention to the Establishment (Appointment and Conditions of Service) Rules of 1972 and in particular Item No. 3 of Schedule II thereof framed under Rule 7 of the said Rules. He pointed out that under the said item, the appointment to the post of Assistant Registrar, which is a selection post is to be made by selection on merit from categories of officers of categories 5, 6 & 7 of Class II mentioned in Schedule, namely, Superintendents. Court Masters (Readers) and Private Secretaries. It was submitted by him that this Rule excluded any reference to seniority and even if it was open to the appointing authority to limit or restrict the zone of consideration it could not be limited with reference to seniority. It was urged by Mr. Thakur that the rule that the promotion was to be made on the basis of selection on merit prescribed by the Chief Justice in conscious exercise of his powers conferred under Article 229 of the Constitution the decision to restrict the zone of consideration to four or five times the number of posts available on the basis of seniority under the combined seniority list was a mere administrative instruction or decision. It was submitted by him that the said instruction or decision is in conflict with that rules prescribing the method of selection by merit and hence it is bad in law. We propose to proceed on the assumption that Mr. Thakur may be right in his contention that mere administrative instructions cannot override rules framed in exercise of the powers conferred under Article 229 of the Constitution although the person issuing the administrative instruction may be that same person who prescribed the rules as in the case before us. Even then, It has to be considered whether the said administrative instructions or decision in any way conflicts with the rules. In this connection Mr. Thakur drew our attention to that decision of this Court in the case of Guman Singh vs State of Rajasthan and Ors. , The few facts which need to be noticed in connection with this case are that in 1965 the State of Rajasthan decided to introduce the system of making promotions to the service on the basis of merit alone in addition to the existing system of making promotions on the basis of seniority cum merit. On December 14, 1965, Rule 28B was incorporated into Rajasthan Administrative Service Rules, 1954, providing for appointment by promotion to posts In the service on the basis of merit and on the basis of ' seniority cum merit in the proportion of 50:50 and prescribing that the number of eligible candidates to be considered for promotion was to be 10 times the total number of vacancies to be filled up on PG NO 786 the basis of merit as well as seniority cum merit. Prior to August 26, 1966, Rule 28B was amended but we are not concerned with such amendments. On that date, Rule 28B was further amended by providing that the proportion of promotion to be made by selection on the basis of merit and seniority cum merit was to be 1:2 instead of 50:50. On the same date, a proviso was also added to sub rule (2) of Rule 28B providing that only officers who have been in service for not less than 6 years in the lower grade of the cadre will be eligible for being considered for the first promotion in the cadre. There was, however, a circular issued subsequently, that is after the said Rules were framed which provided that 50 marks were to be given for the record of 5 years prior to the period of 5 years preceding the selection; and for the five years preceding the selection the marking of 25 was to be given on the basis of confidential rolls. The validity of this Circular was challenged on various grounds. This Court took the view that from the Circular it was clear that an officer who has rendered less than five years of service will not be eligible to get a single mark out of 50 which is provided for the record for the period preceding five years far the simple reason that he will have no such record. An officer who has put in less than five years of service has been straightway denied 50 marks out of 75 marks and he has to establish his worth within the small range of 25 marks on the basis of his confidential rolls which will be available for a period of less than five years. It was held that this formula which was prescribed in the circular was opposed to Rule 28B and Rule 32 which ensured that merit and merit alone was to form the basis of promotion as against the quota fixed for merit. in contradistinction to seniority cum merit. It may be pointed out that in that case the circular question stated that the instructions contained therein should be strictly kept in view when persons are being considered for promotion. In view of this the Circular was held to be invalid. In our view. decision does not lend support to the submission of learned Counsel. Mr. Thakur. This Court pointed out that Rule 28B of the Rajasthan Administrative Service Rules, 1954, in brief, provided for two methods of section one based on merit and the other based on seniority cum merit. In other words the rule provides that the promotion based on seniority cum merit for 50 per cent the posts in contradistinction to that based on seniority cum merit prescribed for the other 50 per cent of the posts. and that the selection on merit shall be strictly on the basis of merit. Rule 32 was similar Rule 28B. It was pointed out that by this Court he word merit is not capable of easy definition. but it can be safely said that merit is the sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction in the University, his PG NO 787 character, integrity, devotion to duty and the manner in which he discharges his duties. Allied to this may be other matters or factors such as his punctuality in work, the quality and out turn of work done by him and the manner of his dealing with his superiors and subordinate officers and the general public and his rank in the service. Rule 32 in essence adopts what is stated in Rule 28B. It was held that the restriction contained in the proviso to sub rule (2) of Rule 28B providing that before an officer in the junior scale could be considered fit for promotion to the senior scale, he should have worked on post in the service at least for some period of time, was quite reasonable. The provisions contained in sub rule (2) confining the selection to senior most officers not exceeding 10 times the number of total vacancies was also held to be reasonable. Such a provision would encourage the members of the service aspiring for promotion to make themselves eligible by increasing their efficiency in the discharge of their duties. However, the impugned Circular was bad in law as it left no discretion to the Selection or Promotion Committee to adopt any method other than that indicated in the Circular in making selections for promotion and the method prescribed was so rigid and so worded as to impede the selection being made on merit. It was held that the Circular was violative of the rule prescribing selection on merit. We may point out that this decision does not take the view that where selection is to be on merit, seniority cannot be taken as a relevant factor for limiting the zone of consideration provided of course, that this is not done so rigidly as to exclude a proper selection on merit being made. In fact, it runs to the contrary effect. We may refer. In this connection, to the case of Sant Ram Sharma vs State of Rajasthan und Anr.; , where it was inter alia contended on behalf of the petitioners that in the absence of any statutory rules governing promotions to selection grade posts, the Government cannot issue administrative instructions and such instructions cannot impose any restriction not found in the rules already framed. A Bench comprising five learned Judges of this Court dealt with the contention as follows (p. 119): "We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection PG NO 788 grade posts. But that does not mean that the statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to the selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. " We may also refer, in this connection to the decision of this Court in Reserve Bank of India vs N.C. Paliwal & Ors., ; which was cited before us although the decision is not directly relevant to the case before us. In that case a challenge was made to the combined seniority scheme adopted by the Reserve Bank of India. The High Court had taken the view that the scheme adopted by the Reserve Bank was violative of Articles 14 and 16 of the Constitution inter alia on the ground that the said combined seniority list framed persuant to the scheme had the effect of prejudicing the promotional opportunities assured to the petitioners under the Optee Scheme which had previously been adopted by the Bank and it discriminated against the petitioners in relation to the clerical staff in the General Department who either did not exercise the option under the Optee Scheme or having exercised the option were not selected. It was observed by this Court (p. 393) that there can be no doubt that it is open to the State to lay down any rule which it thinks appropriate for determining seniority in the service and it is not competent to the Court to strike down such rule on the ground that in its opinion another rule would have been better or more appropriate. The only enquiry which the Court can make is whether ' the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class. the Court pointed out that in the case before it, the employees from the non clerical cadres merit being absorbed in the clerical cadre and therefore, a rule for determining their seniority vis a vis those already in the clerical cadre had to be devised. If the non clerical service rendered by the employees from non clerical cadres were wholly ignored, it would be unjust to them. Equally, it would have been unjust to employees in that clerical cadre, if the entire non clerical service of those coming from non clerical cadres was taken into account for non clerical service cannot be equated with clerical service and the two cannot be treated on the same footing. The Reserve Bank, therefore, decided that one third of the PG NO 789 non clerical service rendered by employees coming from non clerical cadres should be taken into account for the purpose of determining seniority. It was held that this rule attempted to strike a Just balance between the conflicting claims of non clerical and clerical staff and it cannot be condemned as arbitrary or discriminatory. We may also refer here to the decision of a Bench comprising four learned Judges of this Court in Ashok Kumar Yadav & Ors. vs State of Haryana & Ors. etc. etc., [1985] Suppl. I.S.C.R. 657. Rule B clause (1) of the Punjab Civil Service (Executive Branch), Rules, 1930 prescribes a competitive examination for recruitment to posts in Haryana Civil Service (Executive) and other allied services. The relevant regulation (Regulation 5) lays down that the compulsory subjects carry in the aggregate 400 marks and there is also viva voce examination which is compulsory and which carries 200 marks and each optional subject carries 100 marks. Thus, the written examination carries an aggregate of 700 marks for candidates in general and for ex servicemen it carries an aggregate of 400 marks as they were exempted from appearing in optional papers and the viva voce test carries 200 marks. Regulation 3 provides that no candidate shall be eligible to appear in the viva voce test unless he obtains 45 per cent marks in the aggregate of all subjects. In the written examination held by Haryana Public Service Commission for recruitment to 61 post in the Haryana Civil Service (Executive) and other allied Services over 1300 candidates obtained more than 45 per cent marks and thus qualified for being called for interview for viva voce examination. The Haryana Public Service Commission invited all that said candidates for the viva voce examination with the result the interviews lasted for about half a year. In the meantime, further vacancies arose as 191 posts became available far being filled and, on the basis of total marks obtained in the written examination as well as viva voce test, 119 candidates were selected and recommended by the Haryana Public Service Commission to the State Government. The petitioners before the High Court failed to get selected on account of poor marks obtained by them in the vive voce test, although they had obtained high marks in the written examination. They made several allegations regarding the competence of the members of the Public Service Commission as well as regarding favoritism and sc on. The contention with which we are concerned is the contention urged by the petitioners that the number of candidates called for the interview was almost 20 times the number of vacancies and this widened the scope: for arbitrainess in selection by making it possible for the Haryana Public Service Commission PG NO 790 to boost up or deflate the total marks which might be obtained by candidates and this invalidated the selection made. The Punjab and Haryana High Court held that the selection made by the Haryana Public Service Commission was bad in law and decided in favour of the petitioners. On an appeal by special leave to Supreme Court, the Division Bench of the Supreme Court observed as follows (p. 690) : "We must admit that the Haryana Public Service Commission was not right in calling for interview all the 1300 and odd candidates who secured 45 per cent or more marks in the written examination. The respondents sought to justify the action of the Haryana Public Service Commission by relying on regulation 3 of the Regulations contained in Appendix 1 of the Punjab Civil Service (Executive Branch) Rule, 1930 which were applicable in the State of Haryana and contended that on a true interpretation of that Regulation, the Haryana Public Service Commission was bound to call for interview all the candidates who secured a minimum of 45 per cent marks in the aggregate at the written examination. We do not think this contention is well founded. A plain reading of Regulation 3 will show that it is wholly unjustified. We have already referred to Regulation 3 in a~n earlier part of the judgment and we need not reproduce it again. It is clear on a plain natural construction of Regulation 3 that what is prescribed is merely a minimum qualification for eligibility for appearing at the vive voce test must obtain at least 45 per cent marks in the aggregate in the written examination. But obtaining of minimum 45 percent marks does not by itself entitle a candidate to insist that he should be called for the viva voce test. There is no obligation on the Haryana Public Service Commission to call of the viva voce test all candidates who satisfy the minimum eligibility requirement. It is open to the Haryana Public Service Commission to say that out of the candidates who satisfy to eligibility critarion of minimum 45 per cent marks in the written examination, only a limited number of candidates at the top of the list shall be called for interview. " The Bench, however, went on to hold that. in its view, merely because the Haryana Public Service Commission had called all the 1300 candidates who obtained 45 per cent or PG NO 791 more marks in the written examination to appear in the interview that did not invalidate the selection made. This decision points out that the minimum eligibility qualification has to be kept distinct from the zone of consideration and even if there are a large number of candidates who satisfy the minimum eligibility requirement it is not always required that they should be included in the zone of consideration, it being open to the authority concerned to restrict the zone of consideration amongst the eligible candidates in any reasonable manner. In the case before us, zone has been restricted by prescribing that out of the total number of candidates who satisfy the eligibility requirement, the zone of consideration will be limited to a multiple of 3 to 5 times of the number of vacancies and the persons to be considered will be determined on the basis of their seniority in the combined seniority list. It appears to us that there is nothing unreasonable in this restriction. It was open to the Delhi High Court to restrict the zone of consideration in any reasonable manner and limiting the zone of consideration to a multiple of the number of vacancies and basing it on seniority according to the combined seniority list, in our view, it cannot be regarded as arbitrary or capricious or mala fide. Nor can it be said that such restriction violates the principle of selection on merit because even experience in service is a relevant consideration in assessing merit. We may also refer in this connection, to the decision of this Court in V.J. Thomas and Ors. vs Union of India, & Ors. , [1985] Suppl. S.C.C.7 where it has been pointed out that even though minimum eligibility criterion as fixed for enabling one to take the one to take can be confined on a rational basis examination, yet the examination to recruits up to a certain number of years. in adopting such a policy which underlay the Note to clause (4) of Appendix 1 to the new Rules in question, there is nothing which is arbitrary or amounting to denial of equal opportunity in the matter of promotion. It had the desired effect of not having a glut of Junior Engineers taking examination compared to fewer number of vacancies. Length and experience were given recognition by the Note. The promotion can be thus by stages exposing the promotional avenue gradually to persons having longer experience. This seems to be the policy underlying the Note and there was nothing arbitrary or unconstitutional in it Such a limitation caters to a well known situation in service jurisprudence that there must be some ratio of candidates to vacancies. If for taking an examination this aspect of classification is introduced, it is based an rational and intelligible differential which has a nexus to the object sought to be achieved (see p. 13). In view of what we have pointed out above, the submission of Mr. Thakur in this connection must also be rejected. PG NO 792 In fairness to learned Counsel for the petitioners, we must at this stage refer to the decision of the Division Bench of the Allahabad High Court in Madan Mohan Saran & Anr. vs Honble the Chief Justice and Ors. ,[1975] 2 S.L.R. 889 on which strong reliance was placed by learned Counsel. In that case, the petitioner before the Allahabad High Court challenged 3 orders passed by the Chief Justice containing general principles for fixation of seniority of the staff holding posts in various grades in the Establishment of the High Court and the Gradation List of 1951, the Draft Gradation List of 1967 & the Final Gradation List of 1969 in so far as certain respondents were shown as senior to the petitioners. We are not concerned with the other reliefs prayed for by the petitioners in that case. One of the contentions of the petitioner (see paragraph 31 of the report) was that before making a promotion to the post of Assistant Superintendent or a Superintendent, the entire field of eligibility had to be considered and an omission on the part of respondents nos. 1 and 2 to do so rendered the promotion made invalid and that this was what happened when certain respondents were promoted. The Division Bench pointed out that there was no allegation in the counter affidavit that a serutiny of the entire field of eligibility was made before the respondents were appointed. Rule 9 of the Allahabad High Court (Conditions of Service of Staff) Rules, 1946 being the relevant rule found place under the heading promotion to the posts of responsibility etc. " Posts of Assistant Superintendents and Superintendent were posts of responsibility and trust and were covered by Rule 9. The said rule provided that promotion to such posts of responsibility or trust or which require special qualifications "shall be made by section irrespective of seniority". Relying upon the interpretation given to the expression "selection irrespective of seniority" in Mahesh Prasad Srivastavaa c. Abdul Khair, the Division Bench of the Allahabad High Court in Madan Mohan Saran cuse (supra) held that"The use of the words `selection, irrespective of seniority ' shows that the field of eligibility takes within its embrace even the Juniormost member of each department. Being a selection post, promotion has not to be confined to the members of the particular department in which the vacancy has occurred; and the Rule requires respondents Nos 1 and 2 to take into consideration members of the entire Establishment. irrespective of seniority, in making their choice for promotion The question of merit enters primarily in the reckoning. In our view, the petitioner is right in his contention that the ranking or position in the Gradation List does not confer any right on the respondents to be PG NO 793 promoted and that it is a well established rule that promotion to such posts is to be based primarily on merit and not seniority alone". In our view, this decision has no application to the case before us because the words "irrespective of merit" which were used in Rule 9 of the Rules in question are nowhere to be found in the relevant Rules or Schedules before us. In fact, if it was the intention of the rule making authority that all the persons eligible. for the post should be considered in making the selection on merit, expression like irrespective of seniority" or without regard to seniority" or on merit alone" could have been used in the Rules or the Schedule. We do not find any such words in Rule 5 of the said seniority Rules, 1971 or in Rule 7 or Item 3 of Schedule II of the said Establishment Rules of 1972. The mode of appointment to the post of Assistant Registrar, set out in the said Item 3 of Schedule 11, merely states that the appointment will be no selection on merits from confirmed officers of categories 5, 6 & 7 of Class II mentioned in Schedule I and the said Item contains no such expression as we have set out earlier or any other equivalent expression. Coming to the next submission of Mr. Thakur, it was submitted by him that the interpretation placed by the Chief Justice and the learned Judges of the Delhi High Court on Rule 7 of the said Appointment and Conditions of Service Rules, 1972 was incorrect. It was urged by him that, even if the Combined Seniority List is valid, it could not be applied for the purpose of promotion. In dealing with this argument, we may again briefly refer to Rule 5 of the said Seniority Rules of 1971 which clearly provides that joint inter se seniority of confirmed employees in categories of equal status posts shall be determined according to their dates of confirmation in any of these categories. The posts of Superintendents, Court Masters and Private Secretaries to the Honble Judges are treated as equal status posts under Schedule I to the said Seniority Rules, 1971, framed under Rule 2 thereof. Rule 7 of the Establishment Rules of 1972 merely states that, except for appointment on officiating, temporary or ad hoc basis, the mode of and qualifications for appointment to the posts specified in Schedule 1I to the said Seniority Rules of 1971 shall be stated the rein and Item 3 of the said Schedule II to which we have already referred earlier shows that the appointment of Assistant Registrar is to be made on selection on merits from confirmed officers in categories 5, 6 & 7 of Class II mentioned in Schedule I. The only ground on which the validity of the said Rule 7 is challenged is that if it is applied and the zone of consideration restricted on the basis of the said Combined Seniority List, the prospects of promotion which the Superintendents enjoyed would be PG NO 794 reduced. We find ourselves totally unable to appreciate this argument. In the first place, it is not as if either the said Rule 7 of the Establishment Rules of 1972 or Rule 5 of the Seniority Rules of 1971 which provides for a Combined or Joint Seniority List negatives the chance of any promotion to the posts of Assistant Registrars being granted to the Superintendents. In fact, several Superintendents have been promoted to the posts of Assistant Registrars after the said Rules became effective. All that could be pointed out by Mr. Thakur was that under the Combined Seniority list, for some time, relatively fewer Superintendents will be within the zone of consideration for the posts of Assistant Registrars as compared to Private Secretaries to the Honble Judges and Court Masters. We fail to see how any of the said Rules or the said Combined or Joint Seniority List can be struck down on the basis of such a consequence. In the first place, it is well settled that no employee has a right to promotion as such. As we have already pointed out the Rule does not exclude the possibility of Superintendents getting promoted to the posts of Assistant Registrars. It may happen that for an year or two, the number of Superintendents in the zone of consideration might be fewer compared to the number of Court Masters and Private Secretaries within the zone. But that situation might well be reversed a few years later and it is impossible to hold that any of the said provisions is bad in law on that ground. It was next submitted il, this connection that in the mode of appointment set out in Item 3 of Schedule II to the Establishment Rules of 1972 it is stated that for the posts of Assistant Registrars, selection on merits had to be made from confirmed officers of categories 5, 6 & 7 of Class II mentioned in Schedule I. It was urged that the reference to categories 5, 6 & 7 without reference to the Combined or Joint Seniority List indicated that even if the zone of consideration was to be restricted on the basis of seniority this could be done only according to separate seniority lists for each of these three categories and that the Combined Seniority List was not to be used for the purposes of limiting the zone of consideration. According to learned Counsel, the Combined Seniority List was applicable only for the purpose of transfers. In our view, this argument is unsound and cannot be accepted. The reference to categories 5, 6 & 7 in Item 3 of Schedule II to the said Establishment Rules of 1972 is merely made with a view to set out the categories from which promotion or selection has to be made to the posts of Assistant Registrars. The language of Item 3 nowhere indicates that there was any idea to create anything like a quota for each of the said three categories and in fact reading fairly the relevant Rules and Item in the Schedule, it appears to us that the intention is to treat all these categories as forming a single class or category for PG NO 795 purposes of promotion to the posts of the Assistant Registrars. There is no warrant for limiting the use of the Combined Seniority List merely to purpose of transfers. In fact, it appears to us that Rule 5 of the Seniority Rules of 1971 and the Combined Seniority List framed pursuant thereto were intended to provide for a combined seniority for purposes of transfer as well as for purposes of promotion. Finally, it was pointed out by learned Counsel for the Petitioners that no uniform policy has been followed in the past regarding the limitation of zone of consideration as far as the selection to the posts of Assistant Registrars is concerned. This may be so. But, we are afraid, by itself that circumstance cannot lead to a conclusion that promotions are made arbitrarily because the failure to follow one uniform policy in respect of limiting the zone of consideration would not, by Itself, necessarily render the limitation of the zone of consideration invalid on the ground of arbitrariness. So long as the zone of consideration is limited by the competent authority in a manner not inconsistent with the Rules or in a manner which is not arbitrary or capricious or mala fide, the validity of the decision to limit the zone of consideration cannot be successfully called in question on the ground that the manner in which the zone of consideration was limited was not uniform. The zone might have been limited on each occasion keeping in view the relevant circumstances including the number of posts vacant and on a basis having nexus to the purpose of selection. Although, the main grievance of the Petitioners as disclosed in the oral arguments is regarding the limitation of the zone of consideration to 3 times the number of vacancies that grievance is not reflected in the prayer sought and the prayer to the petition only relates to the decision of the Administrative Committee of the learned judges of the Delhi High Court arrived at on 3.2. 1977 to fill in the vacancy in the post of Assistant Registrar by selection from the five seniormost persons from the joint seniority list of Superintendents, Court Masters and Private Secretaries which list was finalised under the said Seniority Rules of 1971 read with the Establishment Rules of 1972. This decision is at annexure 16 to the petition and it has been arrived at by a Committee of Administrative Judges comprising the then learned Chief Justice and four other learned Judges of the Delhi High Court. Nothing has been shown to us to indicate that this decision of the Committee was in any manner capricious, arbitrary or mala fide. The only contention is, as we have already pointed out, that it was not open to the Committee to limit the zone of consideration at all and secondly, that this could not be done with reference to the joint seniority list both of which contentions we have PG NO 797 already rejected earlier. In view of this, the challenge to this decision must fail. In the result, the petition fails and must be dismissed. However, looking to all the facts and circumstances of the case, it appears that the parties should bear their own costs. Hence, the petition is dismissed and rule discharged with no order as to costs. S.L. Petition dismissed.

In the writ petition filed before this Court regarding alleged handcuffing of a practising advocate, contrary to law, while he was being taken to the court after he had been arrested on the charge of a criminal offence, it was alleged that the Union Government and the Delhi Administration had not issued necessary instructions to the police authorities with regard to the circumstances in which an accused, arrested in a criminal case, could be handcuffed or fettered in accordance with the judgment of this Court in Prem Kumar Shukla vs Delhi Administration, The question whether this Court can issue a writ for bringing into force section 30 of the , providing the right to every advocate, whose name was entered in the State roll to practice throughout the territories to which the Act extended before the Courts, Tribunals and other authorities or persons referred to in the Scction, in view of section 3(1) of the Act empowering Central Government to decide the dates on which various provisions of the Act, including section 3. should be brought into force, also came up for consideration. On behalf of the respondents, it was submitted that it was for the Union of India to issue necessary instructions regarding handcuffing of an accused to all the State Governments and the Governments of Union Territories in accordance with the judgment in P.K. Shukla 's case, and that this Court had jurisdiction to issue a writ directing the Central Government to consider the question of bringing into force section 30 of the . PG NO 223 PG NO 224 Disposing of the writ petition, HELD: 1.1 It is not open to this Court to issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government. [229D] A. K. Roy, etc. vs Union of India and Another, ; , followed. However, this Court is of the view that this cannot come in the way of this Court issuing a writ in the nature of mandamus to the Central Government to consider whether the time for bringing section 30 of the into force has arrived or not. [229E] 1.2 Every discretionary power vested in the Executive should be exercised in a just, reasonable and fair way. That is the essence of the rule of law. [229F] In the instant case, the Act was passed in 1961 and nearly 27 years have elapsed since it received the assent of the President of India. In several conferences and meetings of lawyers resolutions have been passed in the past requesting the Central Government to bring into force section 30 of the Act. It is not clear whether Central Government has applied its mind at all to the question whether section 30 of the Act should be brought into force. [229F G] Even today there are laws in force in the country which impose restrictions on the fight of an advocate to appear before certain courts, tribunals and authorities. ln many of the cases which come up before the Courts or Tribunals before which advocates cannot appear, as of right, questions of law affecting the rights of individuals arise for consideration and they need the assistance of advocates. We have travelled a long distance from the days when it was considered that the appearance of a lawyer on one side would adversely affect the interests of the parties on the other side. The legal Aid and Advice Boards, which are functioning in different States, can now be approached by people belonging to weaker sections, such as, Scheduled Castes, Scheduled Tribes, women, labourers etc. for legal assistance and for providing the services of competent lawyers to PG NO 225 appear on their behalf before the Courts and Tribunals in which they have cases. In these circumstances prima facie there is no justification for not bringing into force section 30 of the Act. [227D, G H, 228A B] 1.3 Even though the power under section 30 of the is discretionary, this Court is of view that the Central Government should be called upon to consider within a reasonable time the question whether it should exercise the discretion one way or the other having regard to the fact that more than a quarter of century has elapsed from the date on which the Act received the assent of the President of India. [230A] A writ in the nature of mandamus will issue to the Central Government to consider within a period of six months whether section 30 of the Act should be brought into force or not. The Union of India is directed to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in conformity with the judgment of this Court in Prem Shankar Shukla vs Delhi Administration, and to circulate them amongst all the State Governments and the Government of Union Territories within three months.[226E] Prem Shankar Shukla vs Delhi Administration, ; , referred to.

iminal Appeal No. 50 of 1968. Appeal by special leave from the judgment and order dated August 7, 1967 of the Judicial Commissioner Court, Goa, Daman ,and Diu in Criminal Revision Petition in No. 55 of 1966. Edward Gardner, O.C., A. Bruto Da Costa, M. Bruto Da Costa, P. C. Bhartari, A. K. Varma and J. B. Dadachanji, for the appellant. Niren De, Attorney General, G. R. Rajagopaul, J. M. Mukhi and R. H. Dhebar, for the respondent. The Judgment of the Court was delivered by Hidayatullah, C.J. The appellant (Rev. Father Monteiro) is a resident of Goa. After the annexation of Goa by India, he had the choice of becoming an Indian national or retaining Portuguese nationality. He choose the latter and was registered as a foreigner. He also obtained a temporary residential permit which allowed him to stay on in India till November 13, 1964. The period of stay expired and he did not ask for its extension or renewal. He was ordered to leave India by the Lt. Governor of Goa. The Lt. Governor is empowered by a notification of the President of India issued under article 239 of the Constitution to discharge the functions of the Central Government and his order 91 has the same force and validity as if made by the Central Government. Rev. Father Monteiro disobeyed the order, and in consequence was prosecuted under section 14 read with section 3 (2) (c) of the . He was convicted and sentenced to 30 days ' simple imprisonment and a fine of Rs. 50/ (or 5 days ' further simple imprisonment). He appealed unsuccessfully to the Court of Session and his revision application to the Court of the judicial Commissioner, Goa also failed. He now appeals by special leave of this Court against the order of the Judicial Commissioner, Goa dated August 7, 1967. The defence of Rev. Father Monteiro was that he was pro tected by the , that the order of the Lt. Governor for his deportation was ultra vires the Act and that he had committed no offence. The Judicial Commissioner and the two courts below have held, for different reasons, that the Geneva Conventions ceased to apply after Goa became a part of India and that the Municipal Courts in India can give him no redress against an Act of State. In the appeal before us Mr. Edward Gardner Q.C. appeared for Rev. Father Monteiro with the leave of this Court. To understand the case, a brief history of the annexation of Goa and what happened thereafter is necessary. Goa was a Portuguese colony for about 450 years, having been seized by force of arms. On December 19, 1961 Goa was occupied by the Indian Armed Forces following a short military action. It then came under Indian Administration from December 20, 1961 and was governed under the Goa, Daman and Diu (Administration) Ordinance 1962 promulgated by the President of India. Under the Ordinance all authorities were to continue performing their functions and all laws (with such adaptations as were necessary) were to continue in force and power was conferred on the Central Government to extend to Goa other laws in force in India. The Ordinance was later replaced by an Act of Parliament bearing the same title and numbered as Act 1 of 1962. It was enacted on March 27, 1962 and came into force from March 5, 1962. It re enacted the provisions of the Ordinance and in addition gave representation to Goa in Parliament amending for the purpose the Representation of the People Act. The same day (March 27, 1962), the Constitution (Twelfth Amendment) Act, 1962 was enacted and was deemed to have come into force on December 20, 1961. By this amendment Goa was included in Union Territories and a reference to Goa was inserted in article 240 of the Constitution. Many Acts it,. force in India were then extended to Goa and many Regulations and Orders were promulgated. Among the Acts so extended were the of 1955, the and the . 92 The Central Government also promulgated under section 7 of the , the Goa, Daman and Diu (Citizenship) Order 1962 and as it directly concerns the present matter we may re produce the second paragraph of the Order (in so far as it is material to our purpose) here : "2. Every person who or either of whose parents or any of whose grand parents was born before twentieth day of December, 1961, in the territories now comprised in the Union Territory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day : Provided that any such person shall not be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this Order in the Official Gazette that person makes a declaration in writing to the Administrator of Goa, Daman and Diu or any other authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had immediately before the twentieth day of De december, 1961. Provided further. . . " Pursuant to this Order, on April 27, 1962, Rev. Father Monteiro made his declaration of Portuguese nationality and on August 14, 1964 applied for a residential permit. On his failure to apply for a renewal of the permit the order of the Lt. Governor was passed on June 19, 1965. Prosecution followed the disobedience of the order. At the outset it may be stated that Mr. Gardner concedes that he does, not question the legality of the military action or the annexation. In fact, he is quite clear that we may consider the annexation to be legal. His contention, in brief, is that the order of the Lt. Governor is tantamount to deportation of Rev. Father Monteiro and the gives protection against such deportation during occupation which has not validly come to an end, and, therefore, no offence was committed by him. The argument overlooks one cardinal principle of Inter national Law and it is this Rev. Father Monteiro by his declaration retained his Portuguese nationality. His sojourn in India was subject to such laws as existed in India in general and in Goa in particular. It cannot be doubted that the reception and residence of an alien is a matter of discretion and every State has, by reason ,of its own territorial supremacy, not only the legal right but also 93 the competence to exclude aliens from the whole or any part of its. territory. This proposition is so well grounded in International Law that every country has adopted the passport system, which document certifies nationality and entry into any State is only possible with the concurrence of that State. Again a State exercises territorial supremacy over persons in its territory, whether its own subjects or aliens and can make laws for regulating the entry, residence and eviction of aliens. Therefore, the application of the , the and the Orders passed under them, to Rev. Father Monteiro was legally competent. A considerable body of writers on International Law support the proposition and it is sufficient to refer only to Oppenheim (Vol. 1) pp. 675/676 and Brierly Law of Nations p. 217. If authority were needed the proposition would be found supported in the decision of the Privy Council in Musgrove vs Chun Teeong Toy(1). The Lord Chancellor in that case denied that an alien excluded from British territory could maintain an action in a British Court to enforce such a right. This proposition being settled, Mr. Gardner sought support for his plea from the provisions of the of 1960. That Act was passed to enable effect to be given to the International Conventions done at Geneva in 1949. Both India and Portugal have signed and ratified the Conventions. Mr. Gardiner relies on the provisions of the Fourth Schedule relative to the protection of certain persons in time of war. Ho refers in particular to Articles 1, 2, 4, 6, 8, 47 and 49. By articles 1 and 2 there is an undertaking to respect and ensure respect for the Con ventions in all circumstances of declared war or of any other armed conflict even if the state of war is not recognised by one of the parties and to all cases of partial or total occupation of the territory of a High Contracting Party even if the occupation meets with no armed resistance. Article 4 defines a protected person and the expression includes those who at a given moment and in any manner whatsoever, find themselves, in case of conflict or occupa tion, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Article 6 then lays down the beginning and end of application of the Convention. The Convention applies from the outset of any conflict or occupation. In the territory of Parties to the conflict, the application of the Convention ceases on the general close of Military operations. In the case of occupied territories it ceases one year after the general close of military operations but the occupying Power is bound for the duration of occupation, to the extent that such Power exercise the functions of Government in such territory, by articles 1 12, 27, 29 34, 47, 49, 51, 52, 53, 59, 61 73 and 143. (1) 94 We next come to articles 47 and 49 which are the crux of the matter and are relied upon for the protection. Mr. Gardner points out that under article 48 even protected persons may in no circumstance renounce in part or in entirety the rights secured to them by the Conventions. The case, therefore,, depends on whether articles 47 and 49 apply here. We may now read articles 47 and 49 "47. Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or Government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory." "49. Individual or mass forcible transfers, as well as deportation of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuation may not involve the dis placement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated. The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place. The Occupying Power shall not detain protected persons in an area particularly exposed to the danger of war unless the security of the population or imperative military reasons so demand. 95 The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. " The point of difference between the parties before us in relation to article 47 is whether the occupation continues, the annexation of the territory notwithstanding; and in relation to article 49 whether the order of the Lt. Governor amounts to deportation of a protected person. Mr. Gardner 's submissions are : the order that has been made is a deportation order and it is therefore ultra vires the Geneva Conventions. These Conventions create individual rights which cannot even be waived. So long as occupation continues ,these rights are available and the Geneva Conventions must not be looked at in isolation but read in conjunction with International Law as part of the positive law. They should not be abandoned lightly. According to him, conquest was a method of acquiring territory in the past but after the Covenant of the League of Nations, the Charter of the United Nations and the General Treaty for the Renunciation of War, the acquisition of territory in Inter national Law by the use of force does not confer any title. Occupation, therefore, can only be of terra nullins, not now possible. He invokes the rule in Heydon 's(1) case and says that the history of the making of the Geneva Conventions, shows that this was precisely the mischief sought to be met and the Conventions now become a part of the laws of India through Parliamentary Legislation. He concedes that the war of liberation of Goa and the annexation were lawful but he contends that annexation does not deprive protected persons of the protection. According to him, once there is military action and occupation, occupation cannot cease by a unilateral act of annexation by incorporating the terri tories of Goa with India. If India did not care to be bound by the Conventions, there was a 'Method of denunciation in article 158 but since the Convention is registered under article 159 even denunciation at a late stage was not possible. He relies upon article 77 and says that 'Liberated ' means when the occupation comes to an end. The amendment of the Constitution only legalises annexation so far as India is concerned but in International Law the territory remains occupied. The occupation is not at an end and it cannot be brought about unilaterally. The words of article 47 themselves are clear enough to establish this. In short, the con tention is that occupation does not come to end by annexation and, therefore, the protection continues till there is either cession of the territory or withdrawal of the Occupying Power from the territory, both of which events have not taken place. In support of his propositions be relies upon Dholakia (International Law) (1) 96 pp. 180, 181, 293; Oppenheim International Law (Vol. 1) 7th Edn. 574 et seq. ; R. Y. Jennings : The Acquisition of Territories in International Law pp. 53 56, 67. The contention on behalf of the State is that by occupation is meant occupation by armed forces or belligerent occupation and occupation comes to an end by conquest followed by subjugation. Reference is made to many works on International Law. We have to decide 'between these two submission. This is the first case of this kind and we took time to consider our decision. We are of opinion that the pleas of Mr. Gardner that the makes dispunishable the conduct of Rev. Father Monteiro, must fail. To begin with, the gives no specific right to any one to approach the Court. The Act was passed under article 253 of the Indian Constitution read with entries 13 and 14 of the Union List in the Seventh Schedule to implement the agreement signed and merely provides for certain matters based on Geneva Conventions. What method an aggrieved party must adopt to move the, Municipal Court is not very clear but we need not consider the point because of our conclusions on the other parts of the case. We shall consider the Conventions themselves. Before we consider the Geneva Conventions, which form Schedules to the ' Act, it is necessary to look at the Act itself to see what rights it confers in relation to the Conventions, and whether it gives a right to Rev. Father Monteiro in the present circumstances to invite the Court 's opinion. Being a court of law, this Court must be satisfied about its own jurisdiction, the foundation for which must be in some enforceable law. Prior to the of 1960 there were the Geneva Convention Act of 1911 and the Geneva Conventions Implementing, Act of 1936. We need not consider them because by the twentieth section of the present Act, the former ceases to have effect as part of the law of India and the latter is repealed. The Act is divided into five Chapters. Chapter I deals with the title and extent and commencement of the Act and gives certain definitions. Of these, the important definition is that of 'protected internee ' as a person protected by the Fourth Convention and interned in India. Chapter 11 then deals with punishment of offenders against the Conventions and the jurisdiction of courts to deal with breaches by punishment them. Chapter III lays down the procedure for the trial of protected persons, for offences enabling a sentence of death or imprisonment for a term of two years or more to be imposed and for appeals etc. Chapter IV prohibits the use of Red Cross and other emblems without the approval of Central Government and provides for a penalty. 97 Chapter V gives power to the Central Government to make rules. The Act then sets out the Conventions in its schedules and the Conventions which are four in number are set out in as many Schedules to the Act. It will thus be seen that the Act by itself does not give any special remedy. It does give indirect protection by providing for penalties for 'breaches of Convention. The Conventions are not made enforceable by Government against itself nor does the Act give a cause of action to any party for the enforcement of Conventions. Thus there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population but there is no right created in favour of protected persons which the Court has been asked to enforce. If there is no provision of law which the courts can enforce the court may be powerless and the court may have to leave the matter to what Westlake aptly described as indignation of mankind. The appellant has, however, sought the aid of the Geneva Conventions to establish that he could not be compelled to leave Goa and thus committed no offence. We may, therefore, say a few words about the Geneva Conventions, particularly Schedule IV, which deals with the protection of civilian persons in time of war. In the past protection of civilian population was inadequately provided in Conventions and treaties. The four conventions came at different times, the oldest in 1864 and the last in 1949. The Fourth Hague Convention of 1907 contained articles 42 56, but this protection was restricted to occupation by an enemy army. The Regulations merely stated the principles and enjoined maintenance of law and order and regard for family rights, lives of persons and private property, and prohibited collective punishments. In effect, these were confined to the 'forward areas of war ' and did not apply when 'total war ' took place and the civilian population was as much exposed to the dangers of war as the military. The example of the First World War showed that civilian population was exposed to exactions. At the time when the Hague Regulations were done, it was thought that such matters as non internment of the nationals of the adversary would be observed. But the First World War proved to the contrary. It was in 1921 that the International Committee of the Red Cross produced a draft Convention which among other things enjoined that the inhabitants of the occupied territory should not be deported and civilians in enemy territory must be allowed to return to their homes unless there were reasons of state security and the internees must receive the same treatment as prisoners of war. The Diplomatic Conference of 1929 and the Red Cross Conference of 1934 made useful studies but action scheduled to take place 98 in 1940 could not be implemented as the Second World War broke out. Although the belligerent countries had accepted that the 1929 Convention regarding prisoners of war was applicable to civilians, the lessons of the Second World War were different. We know the treatment of civilians by Germany and the horried deaths and privations inflicted on them. War, though outlawed, continues still and as President Max Huber said: "War, as it becomes more and more total, annuls the differences which formerly existed between armies and civilian populations in regard to exposure to injury and danger. " At the termination of the last war the International Red Cross Conference at Stockholm prepared a draft in 1948, which became the basis of the deliberations of the Diplomatic Conference which met at Geneva from April 21 to August 12, 1949 and the present Convention was framed. The Regulations were not revised or incorporated. The 1949 Conventions are additional to the Regulations and it is expressly so laid down in article 154 of the Geneva Conventions. The Hague Regulations, articles 42 56, contained some limited and general rules for the protection of inhabitants of occupied territory. The Regulations are supplementary. Regulations 43 and 55 which have no counter part in the Geneva Conventions must be read. They are not relevant here Similarly, as there is no definition of 'occupation ' in the Geneva Conventions, article 42 of the Regulation must be read as it contains a definition : "42. A territory is considered as occupied when it finds itself in fact placed under the authority of a hostile army". The Regulations further charge the authority having power over the territory to take all measures to establish and assure law and order. The Regulations generally charged the occupying power to respect the persons and property of the inhabitants of the occupied territory. There was no provision showing when occupation commenced and when it came to an end. It is because of this omission that it is claimed in this case that occupation continues so long as there is no cession of the territory by the conquered or withdrawal by the _conqueror and that till then the protection of the Geneva Conventions obtains. However, article 6, which provides about the beginning and end of the application of the Conventions throws some light on this matter. The question thus remains, what is meant by occupation ? This is, of course, not occupation of terra nullins but something 'else. Since there is no definition of occupation in the Geneva 99 Conventions, we have to turn to the definition in the Hague Regulations. Article 154 of the 4th Schedule reads: "154. Relation with the Hague Conventions : In the relations between the Powers who are 'bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of 29th July, 1899, or that of 18th October, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections 11 and 111 of the Regulations annexed to the above mentioned Conventions of the Hague. " The definition of 'occupation ' in the Regulations must be read since the Regulations are the original rules and the Conventions only supplement the Regulations. We have already quoted the definition and it shows that a territory is considered as occupied when it finds itself in fact placed under the authority of a hostile army. This means that occupation is by military authorities. In the Justice case(1) it was stated that the laws of belligerent occu pation apply only to an occupation during the course of actual warfare and that once the enemy has been totally defeated those laws do not apply to the ensuing occupation. The question thus resolves itself into this : Is occupation in article 47 belligerent occupation or occupation which continues after the total defeat of the enemy ? In this connection courts must take the Facts of State from the declaration of State authorities. Military occupation is a temporary de facto situation which does not deprive the Occupied Power of its sovereignty nor does it take away its statehood. All that happens is that pro tempore the Occupied Power cannot exercise its rights. In other words, belligerent occupation means that the Government cannot function and authority is exercised by the occupying force. Annexation, on the other hand, occurs when the Occupying Power acquires and makes the occupied territory as its own. Annexation gives a de jure right to administer the territory. Annexation means that there is not only possession but uncontested sovereignty over the territory. As Greenspan(2) put it (p. 215) military occupation must be distinguished from subjugation, where a territory is not only conquered, but annexed by the conqueror. There is, however, a difference between true annexation on the one hand and premature annexation, or as it is sometimes called 'anticipated annexation ', on the other. Jurists regard annexation as premature so long as hostilities are continuing and there is an opposing army in the field even if the Occupied Power is (1) United States V. Attstoctter, et. (1947) U. section Military Tribunal, Nucmberg L. R. 3 T. W. C. vi, 34. (2) The Modern Law of Land Warfare. 100 wholly excluded from the territory. Anticipated annexation by unilateral action is not true annexation. True annexation is only so when the territory is conquered and subjugated [see Oppenheim International Law. (7th Edn.) pp. 846 847. (Vol. 1) 566 (Vol. 1), pp. 448/52 (Vol. 11), 430 439 (Vol. 11) and 599 et seq (Vol. 11), Greenspan (ibid) pp. 215 et seq 600 603; Gould Introduction to International Law pp. 652 656, 662 663; Brierly Laws of Nations p.[155]. The Conventions rightly lay dowin that annexation has no effect on the protection. But they speak of premature or anticipated annexation. Premature or anticipated annexation has no effect. Such a plea was negatived for the same reason by the Nuremberg Tribunal. In fact, when the Convention itself was being drafted the experts were half inclined to add the word " alleged ' before 'annexation ' in article 47 to distinguish between annexation following conquest and subjugation and annexation made while hostilities are going on. Subjugation puts an end to the state of war and destroys the source of authority of the existing Government. In subjugation, which is recognised as one of the modes of acquiring title, not only the de facto but also the de jure title passes to the conqueror. After subjugation the inhabitants must obey the laws such as are made and not resist them. Thus the principle which is accepted is that the Occupying Power must apply the Convention even when it claims during conflict to have annexed the occupied territory. However, when the conflict is over and there is no hostile army in the field, annexation has the effect of creating a title to the territory. It may be asked why does article 6 then mention a period of one year ? The reason given is that if the Occupied Power turns victorious the land would be freed in one year and if the Occupying Power remains victorious, as hostilities cease, strong measures against the civilian population are no longer necessary. In this, as in other laws, a line is drawn arbitrarily and it is at the end of one year. Otherwise also, occupation, which means belligerent occupation, comes to an end when hostilities cease and the territory becomes a art of the Occupying Power. Annexation may sometimes be peaceful, as for example, Texas and Hawaiian Islands were peacefully annexed by the United States, or after war, as the annexation of South Africa and Orange Free State by Britain. The question, when does title to the new territory begin, is not easy to answer. Some would make title depend upon recognition. Mr. Stimson 's doctrine of non recognition in cases where a state of things has been brought about contrary to the Pact of Paris was intended to deny root of title to conquest but when Italy conquered Abyssinia, the conquest was recognised because it was 101 thought that the state of affairs had come to stay. Thus, although the United Nations Charter includes the obligation that force would not be used against the territorial integrity of other States (article 2 para 4), events after, the Second World War have shown that transfer of title to territory by conquest is still recognised. Prof. R. Y. Jennings poses the question : What is the legal position where a conqueror having no title by conquest is nevertheless in full possession of the territorial power, and not apparently to be ousted ?" He recommends the recognition of this fact between the two States. If cession after defeat can create title, occupation combined with absence of opposition must lead to the same kind of title. In the present case the facts are that the military engagement was only a few hours ' duration and then there was no resistance at all. It is hardly necessary to try to establish title by history traced to the early days as was done in the Minquiers and Ecrencs(1) case. Nor is there any room for the thesis of Dr. Schwarzenberger (A Manual of International Law, 5th Edn. p. 12 that title is relative and grows with recognition . True annexation followed here so close upon military occupation as to leave no real hiatus. We can only take the critical date of true and final annexation as December 20, 1961 when the entire government and administration were taken over and there was no army in occupation and no army in opposition. The occupation on December 20, 1961 was neither belligerent occupation nor anticipated occupation, but true annexation by conquest and subjugation. It must be remembered that Mr. Gardiner concedes that the annexation was lawful. Therefore, since occupation in the sense used in article 47 had ceased, the protection must cease also. We are, therefore, of opinion that in the present case there was no breach of the Geneva Conventions. We were invited to look at the matter from another point of view, namely, even if the protection against deportation envisaged by articles 47 and 49 were taken to be continued, what is the remedy which the Municipal Courts can give ? It was said, the act was an Act of State. In view of what we have already held it is not necessary to pronounce our opinion on this argument. The national status of subjects of the subjugated state is a matter for the State, and courts of law can have no say in the matter. As Oppenbeim (Vol. 1 p. 573) puts it "The subjugating state can, if it likes allow them to emigrate, and to renounce their newly acquired citizenship, and its Municipal Law can put them in any position (1)1953 (I. C. J.) 47. 102 it likes, and can in particular grant or refuse them the same rights as those which its citizens by birth enjoy. " The Geneva Conventions ceased to apply after December 20, 1961. The Indian Government offered Rev. Father Monteiro Indian nationality and citizenship which he refused and retained his Portuguese nationality. As a Portuguese national he could only stay in India on taking out a permit. He was, therefore, rightly prosecuted under the law applicable to him. Since no complaint is made about the trial as such, the appeal must fail. It will be dismissed. G.C. Appeal dismissed.

In pursuance of the Indian Forest Service (Initial Recruitment) Regulation, 1966, framed under r. 4(1) of the Indian Forest Service (Recruitment) Rules made under the All India Services Act, 1951, a Special Selection Board was constituted for selecting officers to the Indian Forest Service in the senior and junior scales from officers serving in the forest department of the State of Jammu and Kashmir. One of the members of the Board was the Chief Conservator of Forests of the State, as )required by the Regulations. He was a Conservator of forests appointed as Acting Chief Conservator superseding another Conservator of Forests whose appeal to the State Government against his supersession was pending at the time the selections by the Board were made. The Acting Chief Conservator was also one of the candidates seeking to be selected to the Indian Forest Service. The Board made the 'selection of officers in the senior and junior scales. The Acting Chief Conservator 's name was at the top of the list of selected officers, while the names of three conservators, (including the officer who was superseded), who were the Acting Chief Conservator 's rivals, were omitted. The Acting Chief Conservator did not sit in the Selection Board at the time his name was considered, but participated in the deliberations when the names of his rivals were considered. He also participated in the Board 's deliberations while preparing the list of selected candidates in order of preference. The list and the records were sent to the Ministry of Home Affairs and the Ministry of Home Affairs forwarded the list with its observations to the Union Public Service Commission, as required by the Regulations, and the U.P.S.C. examined the records of the officers afresh and made its recommendations. The Government of India thereafter notified the list. The three conservators, whose names were not included in the list, and other aggrieved officers filed a petition in this Court under article 32 for quashing the notification. On the questions : (1) Assuming that the proceedings in the present case were administrative proceedings, whether principles of natural justice applied to them; (2) Whether there was a violation of such principles of natural justice in the present case; (3) Since the recommendations of the Board were first considered by the Home Ministry and the final recommendations were made by the U.P.S.C., whether there was any basis for the petitioners ' grievances; (4) Whether there were grounds for setting aside the selection of all the officers including those in the junior scales, HELD : (1) The rules of natural justice operate in areas not covered by any law validly made, that is, they do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceeding also, especially when it is not easy to draw the line that 458 demarcates administrative enquiries from quasi judicial ones, and an unjust decision in an administrative enquiry may have a more far reaching effect than a decision in a quasi judicial enquiry. [468F G; 469B D] Suresh Koshy George vs The University of Kerala, ; , State of Orissa vs Dr., (Miss) Binapani Dei ; and In re : H. K. (An Infant) , 630, referred to. (2) The concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now included among the principles of natural justice. [468G H; 469D L ] In the present case. at the time of selection, the other members of the Board did not know that the appeal of the superseded conservator was pending before the State Government and hence there was no occasion for them to distrust the opinion of the Acting Chief Conservator. There was a conflict between his interest and duty and he was a judge in his own cause. Taking into consideration human probabilities and the ordinary course of human conduct, there was reasonable ground for believing that the Acting Chief Conservator was likely to have been biased. He did not participate in some of the deliberations of the Board, but the facts that he was a member of the Board and that he participated in the deliberations when the claims of his rivals were considered and in the preparation of the list, must have had its impact on the selection, as the Board, in making the selection, must necessarily have given weight to his opinion. In judging the suitability of the candidates the members of the Board must have had mutual discussions and though the other members filed affidavits stating that the Acting Chief Conservator in no manner influenced their decision, in group discussions, each member was bound to influence the others in a subtle manner and without their being aware of such influence. [466D G; 467A D] In the circumstances of the case, the selection by the Board, could not be considered to have been taken fairly and justly as it was influenced by a member who was biased. [470 C E] (3) The Selection Board was undoubtedly a high powered body, and its recommendations must have had considerable weight with the U.P.S.C. The recommendation made by the U.P.S.C. could not be dissociated from the selection made by the Selection Board which was the foundation for the recommendations of the U.P.S.C. Therefore, if the selection by the Selection Board was held to be vitiated, the final recommendation by the U.P.S.C, must also be held to have been vitiated. [462 G H; 469G H] Regina vs Criminal Injuries Compensation Board, Ex Parte Lain, , 881, applied. Sumer Chand Jain vs Union of India W.P. No. 237 of 1966, dated 4 5 1967, distinguished. 459 (4) The selections to both senior and junior scales were made from the same pool and so, it was not possible to separate the two sets of Officers. Therefore, it was not sufficient to merely direct the Selection Board to consider the cases of the three conservators who were excluded, but all the selections had to be set aside. [470 G H; 471A]

minal Appeal No. 126 of 1961. Appeal from the judgment and order dated May3,1961 of the Allahabad High Court in Criminal Appeal No. 381 of 1960. O. P. Rana, for the appellant. The respondent did not appear. April 25. The judgment of the Court was delivered by RAGHUBAR DAYAL J. Raja Kamlakar Singh of Shankargarh, U.P. took a lease from the District Board, Allahabad, with respect to the realisation of bayai and bazaar dues on the sale of commodities in the bazaar of Shankargarh. Bachchoo Lal was his employee to collect these dues. On April 13, 1959, Bahadur Singh , a peon of the Raja Sahib, asked Shyam Lal Kurmi, P.W. 2, who had sold two bullock load of linseed to Mewa Lal, respondent 2, in that 360 bazaar, to accompany him to the Munim in order to pay the bayai dues there. Mewa Lal asked Shyam Lal not to pay those dues. The peon, however, took Shyam Lal to Bachchoo Lal, appellant, at the grain godown. Mewa Lal, armed with a lathi, came there and on Bachchoo Lal 's asking him as to why he was creating obstruction in the realisation of the dues, filthily abused him and threatened to break his hand and feet and kill him. Bachchoo Lal, thereafter, instituted a complaint against Mewa Lal, on obtaining sanction of the District Magistrate for prosecuting Mewa Lal for an offence under section 107 of the United Provinces District Board Act, 1922 (U.P. Act No. X of 1922), hereinafter called the Act. The trial Magistrate, the II Class Tashildar Magistrate of Karchana, convicted Mewa Lal of the offences under sections 504 and 506, I.P.C., and also of an offence under section 107 of the Act. On appeal, the Sessions Judge, Allahabad, acquitted Mewa Lal holding that proper authority in favour of Bachchoo Lal for prosecuting Mewa La] under section 10 7 of the Act had not been proved, that the Magistrate had no jurisdiction to try an offence under section 506, Part II, I.P.C. which was triable by a Magistrate of the I Class, and that the prosecution case under section 504 I.P.C., was suspicious. Bachchoo lal filed an appeal against the acquittal of Mewa Lal, after obtaining the permission of the High Court under sub section (3) of section 417 of the Code of Criminal Procedure, hereinafter called the Code. The High Court dismissed the appeal repelling the contentions for the appellant to the effect that the appellant, being the complainant and therefore a party to the criminal case against Mewa Lal, ought to have been given notice of the appeal by the Sessions judge and also ought to have been given an opportunity to be heard and that such notice and opportunity of hearing were necessary on the principles of natural justice and in view of the fact that section 417 (3) of the Code conferred a 361 substantive right of appeal on the complainant. The High Court further held that though the Sessions judge was wrong in holding that the sanction required by section 182 of the Act had not been proved, the sanction was in the name of Raja Sahib of Shankargarh and not of Bachchoo Lal and therefore the complaint was not a valid complaint and that the Raja Sahib could not collect Tah Bazari through his agents. It also held that the acquittal of the accused of the offence under section 506 I.P.C., was justified and that the acquittal of the offence under section 504 I.P.C. could not be said to be erroneous and that in any case the matter was too petty for interfering with an order of acquittal even if it had taken a different view of facts from the one taken by the Sessions judge. The High Court, accordingly, dismissed the appeal. Bachchoo La] has preferred this appeal after obtaining the requisite certificate from the High Court under article 134 (I.) (c) of the Constitution. The State of U.P. is the first respondent and Mewa Lal, the accused, is respondent No. 2. Three questions have been raised on behalf of the appellant. One is that the Assistant Sessions judge ought to have issued a notice of the hearing of the appeal to the appellant on whose complaint Mewa Lal was convicted by the Magistrate and against which order of conviction he had filed an appeal. No such notice was issued to him and therefore the order of the Assistant Sessions Judge acquitting Mewa Lal was not a good order. ' The second contention is that the High Court was wrong in holding that the Raja of Shankargarh could not collect the Tah Bazari dues through his agents. The third contention is that Bachchoo Lal had requisite sanction under section 182 of the Act for prosecuting Mewa La] and, therefore, the finding to the contrary is wrong. 362 The third contention is correct. The requisite authority under section 182 of the Act is in favour of not only the Raja of Shankargarh, but also in favour of several of his employees including Bachchoo Lal, the appellant. We need not express an opinion on the second contention as we do not know the terms of the lease executed by the District Board in favour of the Raja of Shankargarh and as we are not concerned with the civil rights with respect to the manner of collecting the dues which he could collect under the lease. We are, however, of opinion that section 107 does not make obstruction or molestation of an employee of the person under contract with the Board an offence. Section 107 of the Act reads "Whoever obstructs or molests a person employed by, or under contract with, the Board under this Act in the performance of his duty or in the fulfilment of his contract, or removes a mark set up for the purpose of indicating any levels or direction necessary to the execution of works authorised by this Act, shall be liable on conviction to a fine which may extend to fifty rupees. " The section speaks of the obstruction or molestation of two classes of persons. One class of persons consists of persons employed by the District Board under the Act. The Raja of Shankargarh or Bachchoo Lal is not an employee of the District Board. The second class of persons consists of those who are under contract with the Board under the Act. Surely, the person under contract with the Board is the Raja of Shankargarh and not Bachchoo Lal. Bachchoo Lal is only an employee of the Raja. 363 We did not hear the learned counsel on the merits of the case under section 504 of the Code and accept the finding of the court . below. In view of the considerations mentioned, no interference is possible with the acquittal of the respondent No. 2 on merits. It is, therefore, not necessary to decide the first question raised for the appellant. We accordingly dismiss the appeal.

During the pendency of proceedings before an Industrial Tribunal relating to certain disputes between a bank and its workmen represented by the union of its employees, the respondents along with other workmen numbering over a thousand commenced a general strike in connection with a fresh dispute. The strikers were dismissed and on a reference to another Tribunal, it was held by that Tribunal that the strike was illegal and the dismissal was legal. The Labour Appellate Tribunal held on appeal that though the strike was illegal the bank had condoned it and the dismissal was therefore illegal and ordered reinstatement On further appeal; 687 Held, that even assuming that the strike was illegal and the bank had not condoned it, as proceedings were pending before another Tribunal between the bank and its workmen in respect of an industrial dispute, under section 33 of the , the bank could not dismiss the workmen save with the permission in writing of that Tribunal which was not obtained and the dismissal was accordingly illegal on this ground. Section 33 of the , applies to strikes and lock outs as well, though it does not appear in Chap. V of the Act which is headed " Strikes and lock outs " but in Chap. VII which is headed " Miscellaneous."

ivil Appeal No. 2846 of 1989. From the Judgment and Order dated 24.4.1989 of the Bombay High Court in W.P.No. 4118 of 1986. H.S. Guru Raja Rao, section Markandeya and Ms. C. Markandeya, for the Appellant. L.A. Kriplani and S.K. Jain for the Respondents. The Judgment of the Court was delivered by K.N. SAIKIA, J. This appeal by special leave is from the Judgment and Order of the High Court of Bombay dated 24.4.1989 in Writ Petition No. 4118 of 1986 dismissing the petition. The second respondent Shyam Cooperative Housing Society Ltd. was a tenant co partnership cooperative society (for short, `the 597 Society ') and Panjumal H. Advani late father of the first respondent (for short, `Advani ') was its tenant co partner member. By an application dated 10.6.1969, Advani obtained permission of the Society to induct the appellant temporarily into his flat and accordingly, the appellant took on rent from Advani flat No. 24, Block No. 1,second floor, Nanik Niwas, situate at Bhulabhai Desai Road, Bombay (for short, `the flat ') on a monthly rent of Rs. 1,000 (Rupees one thousand) on 10.6.1969. On the same date the appellant, under the Society 's rules, applied for its nominal membership stating, inter alia, that he intended to take the flat for temporary use and occupation; that he would not claim any right of permanent nature; and that he would vacate the flat on receipt of notice thereof. By an agreement of leave and licence dated 11.6.1969 entered into between the appellant and Advani, the appellant took exclusive possession of the flat. The agreement was for a period of 11 months and was renewable for 2 further periods of 11 months each. Vide Resolution No. 208 dated 13.6.1969, the Managing Committee of the Society granted the permission. By letter dated 22.1.1972 Advani purported to terminate the licence with effect from 10.3.1972 and asked the appellant to vacate the flat and the appellant having not acceded to the request, Advani informed the Society, which, vide letter dated 22.2.1972 required the appellant to vacate the flat and to deliver possession thereof to Advani on or before the 10th March, 1972. The appellant instead of vacating the flat filed an application in the Court of Small Causes, Bombay on 13.3.1972 for fixation of its standard rent. In April 1972, Advani and the Society raised a dispute under section 91 of the Maharashtra Cooperative Societies Act to recover possession from the appellant who in turn filed declaratory suit No. 989/5305 of 1972 in the Court of Small Causes, Bombay on 10.11.1972 seeking a declaration that he was the tenant of the flat, with an interim application for stay of the proceeding till the disposal of his application for fixation of standard rent; but that application was rejected and the appellant was thereafter unsuccessful in the High Court which was dismissed on 7.9.1977. The learned Judge of the IInd Cooperative Court, Greater Bombay by his Judgment dated 6.3.1985 dismissed the suit holding that the appellant was a licensee and not a tenant, but the Society was an idle party and had acted in collusion with Advani to vacate the appellant. Advani and Society appealed therefrom to the Maharashtra State Cooperative Appellate Court, Bombay in Appeal No. 397 of 1985 which was allowed and the impugned Judgment of the IInd 598 Cooperative Court was set aside on 31.7.1986. The appellant impugned the appellate order in Writ petition No. 4118 of 1986 in the High Court of Judicature at Bombay, contending, inter alia, that the agreement between the appellant and Advani, though styled as a leave and licence, was a lease; that section 91 of the Maharashtra Cooperative Societies Act, 1960 was not attracted and could not have been invoked by Advani and the Society; and that section 91 itself was ultra vires the Article 14 of the Constitution of India to the extent it tried to reach persons who were not members of cooperative societies. The High Court, while dismissing the writ petition, inter alia, held that the agreement was of temporary nature and no interest in the flat having been created in favour of the appellant, even though he had exclusive possession, it could not have been a lease; that the alleged collusion between Advani and the Society to evict the appellant was based on conjectures and could not take the matter out of the purview of section 91 of the Cooperative Societies Act which was not ultra vires. Mr. S.S. Gururaja Rao, the learned counsel for the appellant submits, inter alia, that the agreement dated 11.6.1969 between Advani and the appellant was one of lease with all its ingredients and not one of leave and licence; that the agreement having been a lease the cooperative Court had no jurisdiction in respect thereof and it was the Civil Court envisaged under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 that would have jurisdiction in the matter; and that even assuming that the Cooperative Court had jurisdiction in respect of a leave and licence created under the provisions of the Act, that Court would not have jurisdiction in this matter, the appellant being only a nominal member and not a tenant member of the Society. Mr. L.A. Kripalani, the learned counsel for the respondents, submits that the agreement was one of leave and licence and not of lease; that in the matter of the agreement the Cooperative Court alone has jurisdiction and no other court; and that being a nominal member of the Society in view of his application for such a membership the appellant would come within the jurisdiction of the Cooperative Court. The first question to be decided in this appeal, therefore, is 599 whether the agreement dated 11.6.1969 was one of lease or of leave and licence. In the agreement dated 11.6.1969 the Party of the First part has been called the `licensor ' and the Party of the Second part has been called the `licensees '. The licensor is stated to be a shareholder and member of the Society. Its recitals said: "AND WHEREAS the Licensor is the absolute owner of the said flat and whereas the party of the Second part has approached the Party of the First part to allow them the use of the said flat with, fittings, fixtures and furniture lying therein. AND WHEREAS the Party of the First part has agreed to allow the party of the Second part to use the said flat along with fittings, furniture, fixtures etc. The following were the relevant terms of the agreement: "1. The `licensor ' has given the use of his flat No.24, 2nd floor, Nanik Niwas, Block No. 1, Bhulabhai Desai Road on Leave and Licence basis. The licence in the initial stage is for the period of 11 months to be renewed by another period of 11 months and a second option of 11 months also, to make up the period of 33 months. The Licensees shall pay compensation of Rs. 1,000 (Rupees one thousand only) per month to the `licensor ' the use of the said flat along with fittings, fixtures and furniture lying therein more fully described in the schedule herewith attached; This compensation payable by the said `Licensees ' to the said `Licensor ' shall include all the charges and taxes leviable either by the Shyam Cooperative Housing Society Ltd., Bombay 26 or by the Bombay Municipal Corporation or by any local or State authorities except the changes which are specially mentioned hereunder. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 600 9. It is agreed by this agreement that only `Licensee ' is intended to be given to the `Licensees ' to use the flat and fixtures, fittings, furniture etc. more fully described in the schedule attached herewith and the `Licensees ' will at no time claim tenancy or sub tenancy of the premises. The premises are in Nanik Niwas, Block No.1, Second Floor, Flat No.24, of the Shyam Cooperative Housing Society Ltd., and the rules regulations and bye laws of the said Society do not permit any tenancy or sub tenancy being created in respect of the premises. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 22. That the `Licensee ' will not surrender their rights under this agreement in favour of anyone else except the `Licensors '. That the `Licensees ' shall observe all rules, regulations, and by laws of the Shyam Cooperative Society as nominal members during the period of this licence. From the above recitals and the terms and conditions there is no doubt that ex facie it is one of leave and licence for use of the flat and fixtures, fittings, furniture etc. and that the licensee would at no time claim tenancy or sub tenancy in respect of the flat. There is also no doubt that in his application for nominal membership, the appellant stated that he intended to take the flat for temporary use and occupation and that he would not claim any right of permanent nature. In the Managing Committee Resolution No.208 dated 13.6.1969, the appellant was admitted as a nominal member of the Society and was permitted to temporarily occupy the flat. Thus, there appears to be no room for contending, contrary to the terms of the agreement, that the agreement was a lease and the appellant was a tenant of Advani, as such the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as `the Rent Act ', was applicable to him. However, relying on Antoniades vs Villiers and Anr., reported in ; , it is submitted for the appellant that he having been given exclusive possession of the flat for a time, the agreement must be construed as a lease and him as a tenant. In that case the respondent let a flat to the appellants, a young unmarried couple, under separate but identical agreements termed `licenses ', which were executed contemporaneously and stipulated with reiterated emphasis that the appellants were not to have exclusive possession. In particular, 601 by clause 16, that agreement stated that the licensor shall be entitled at any time to use the rooms together with the licensee and permit other persons to use all of the rooms together with the licensee and further stated that the real intention of the parties in all the circumstances was to create a licence which did not come under the Rent Acts. The rental payable was 87 pounds per month by each occupant and the agreements were determinable by one month 's notice by either party. The respondent never attempted to use any of the rooms or authorised any other persons to use the rooms. In July 1986 the respondent gave the appellants a notice to quit and applied to the court for an order for possession, but his claim was dismissed on the ground that the appellants were tenants who were entitled to the protection of the Rent Acts. The respondent appealed to the Court of Appeal, which allowed his appeal. The appellants having appealed to the House of Lords it was held that the agreements were interdependent on one another and were therefore to be read together as constituting one single transaction. Since it was the intention of the two appellants to occupy the flat as man and wife and since that intention was known to the respondent, the true nature of the arrangement was to create a joint tenancy and the purported retention by the respondent of the right to share the occupation of the small flat with the appellants or to introduce an indefinite number of third parties to do so was clearly a pretence to deprive them of the protection of the Rent Acts. It followed that the agreements created a joint tenancy and not a licence, and the appeal would therefore be allowed. It may be noted that in the above case there was no obligation of or relation to any cooperative society and laws governing members thereof, whereas in the instant case admittedly Advanai was a tenant co partner member of the Society and the appellant by virtue of the agreement of licence was also admitted to nominal membership accepting his statement in his application. While interpreting the agreement we have also to see what transpired before and after the agreement. Ex praecedentibus et consequentibus optima bit interpretation. The best interpretation is made from the context. "It is a true rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex antecedentibus et consequentibus; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done. " As was said in N.E. Railway vs Hastings, "The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into 602 harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible. In the agreement the intention to create a licence is clear. Positively it speaks of a licence for the use of the flat and negatively that the licensee would not claim any tenancy or sub tenancy. That the intention of the parties was to create only a licence and not a lease is clear from the tenor of the agreement. True, by mere use of the word lease or licence the correct categorisation of an instrument under law cannot be affected. What was given to the licensee was to use of the flat with furniture, fittings etc., which could not be said to have created any interest in the flat though in effect the use continued for a stipulated period of time. It is true, where the ingredients of a lease are present and the licensee is according to law, a tenant, he ought to be given the benefit of the Rent Act. As was held in Board of Revenue etc. vs A.M. Ansari etc. ; , , it is the substance of the agreement between the parties which is a decisive consideration on the question whether a particular grant amounts to a lease or a licence. In Tarkeshwar Sio Thakur Jiu vs Dar Dass Dey & Co. & Ors., ; ; , the document though named as licence was construed as a lease. If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof it will be a licence. If there is a transfer of interest in law and exclusive possession is given to the grantee then it is a lease. Thus, exclusive possession by itself will not amount to creation of interest. Exclusive possession by itself would not militate against the concept of a licence, if the circumstances negative any intention to create a tenancy. Following Sohan Lal Naraindas vs Laxmidas Raghunath Gadit, , we reiterate that the intention of the parties to an agreement has to be gathered from the terms of the agreement construed in the context of the surrounding, antecedent and consequent circumstances. The crucial test would be what the parties intended. If infact it was intended to create an interest in the property, it would be a lease, if it did not, it would be a licence. In determining whether the agreement was a lease or licence, the test of exclusive possession, though of significance, is not decisive. Interest for this purpose means a right to have the advantage accruing from the premises or a right in the nature of property in the premises but less than title. 603 Lease has been defined in section 105 of the as under: "A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. " The essential elements of a lease are: 1. the parties 2. the subject matter, or immovable property 3. the demise, or partial transfer 4. the term, or period 5. the consideration, or rent. The relationship of lessor and lessee is one of contract. In Bacon 's Abridgement, a lease is defined as "a contract between the lessor and the lessee for the possession and profits of land, etc., on the one side and recompense by rent or other consideration on the other. " Hence it has been held that "a mere demand for rent is not sufficient to create the relationship of landlord and tenant which is a matter of contract assented to by both parties. " When the agreement vests in the lessee a right of possession for a certain time it operates as a conveyance or transfer and is a lease. The section defines a lease as a partial transfer, i.e., a transfer of a right of enjoyment for a certain time. This Court has held that a renewal of a lease is really grant of a fresh lease though it is called a renewal because it postulates the existence of a prior lease. Where the initial term was, say one year, it could not co exist with a renewal of that very lease within one year. Renewal could take place only on the expiry of the initial lease, and not before. The intention of the parties in making the agreement is determinative of the question whether it was a lease or licence. In Halsbury 's Laws of England, 4th Edn. 27, at paragraph 6, on General Principles 604 for determining whether agreement creates lease or a licence we read: "In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive considerations is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such. The parties ' relationship is determined by law on a consideration of all relevant provisions of the agreement; and an agreement labelled by the parties to it as a `licence ' will still be held to create a tenancy if the substance of the agreement conflicts with that label. Similarly, the use of operative words (`let ', `lessor ' etc.) which are appropriate to a lease will not prevent the agreement from conferring only a licence if from the whole document it appears that it was intended merely to confer a licence. Primarily the court is concerned to see whether the parties to the agreement intend to create an arrangement personal in its nature or not, so that the assignability of the grantee 's interest, the nature of the land and the grantor 's capacity to grant a lease will all be relevant considerations in assessing what is the nature of the interest created by the transaction. In the absence of any formal document the parties ' intention must be inferred from the circumstances and the parties ' conduct. " It has been submitted for the appellant that the very fact of exclusive possession of the flat being given to the appellant was sufficient to make him lessee and Advani his landlord. We do not agree with the submission in an unqualified form. There have been cases where exclusive possession has been given outside the Rent Act. In Isaac vs Hotel De Paris, Ltd., [1960] (1) All E.R.348, the respondent company owning the hotel de Paris where the lessees of another building called the P.Hotel, it was held that the respondent company were entitled to an order for possession because the relationships between the parties was not that of landlord and tenant but of licensor and licensee, even though there was exclusive possession by the appellant and the acceptance of the amount of the rent by the respondent company, the circumstances and the conduct of the parties showing that all that was intended was that the appellant should have a personal privilege of running a night bar at the P.Hotel with no interest 605 in the land at all, and this privilege came to an end with the notice of May, 1956 and that after the notice the appellant remained in occupation at sufferance, and, in the circumstances, the acceptance of rent by the respondent company did not waive their right to immediate possession. It was observed that there were many cases in the books where exclusive possession had been given of premises outside the Rent Restriction Acts and yet there had been held to be no tenancy. Lord Denning quoted from Booker vs Palmer, (677): "There is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationship where the circumstances and the conduct of the parties negative any intention of the kind. ' The following passaged was also cited with approval: "It is clear from the authorities that the intention of the parties is the paramount consideration and while the fact of exclusive possession together with the payment of rent is of the first importance, the circumstances in which exclusive possession has been given and the character in which money paid as rent has been received are also matters to be considered. " On the question of nature and effect of the grant of exclusive possession in paragraph 7 of Halsbury 's Laws of England, 4th Edn., Vol.27, we read: "The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance, although of lesser significance than the intention of the parties. In deciding whether a grantee is entitled to exclusive posession regard must be had to the substance of the agreement. In order to give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee requires that he should have exclusive possession. However, the grant of an exclusive right to a benefit can be inferred only from language 606 which is clear and explicit. If an exclusive right of possession is subject to certain reservations or to a restriction of the purposes for which the premises may be used, the reservations or restriction will not necessarily prevent the grant operating as a lease. " We may now examine the position of the appellant under the Rent Act. The Rent Act has not defined a `lease '. As defined in section 5(11) `tenant ' means any person by whom or on whose account rent is payable for any premises and includes (a) such sub tenants and other persons as have derived title under a tenant before the 1st day of February, 1973; (aa) any person to whom interest in premises has been assigned or transferred as permitted or deemed to be permitted, under 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 the 1st day of February, 1973; (bb) such licensees as are deemed to be tenants for the purpose of this Act by section 15A; (c) xxx xxx xxx xxx xxx xxx" Thus the above sub section (bb) read with section 15A of the Rent Act makes the `tenant ' one of status and not of contract. the licensee has been conferred the status of a tenat. This reminds us of what Sir Henry Maine observed in Ancient Law. "The movement of progressive societies had been from status to contract". But Lord Simmonds pointed out in Johnson vs Merston, , that since the days of Maine, the movement of the progressive societies in various fields, has been almost the reverse, that is, from contract to status. With acute dearth of accommodation and dire need for it people may agree to a pretence or unreasonable term from which law alone can protect them and render justice to the parties. As defined in the section 5(4A) of the Rent Act `licensee ', in respect of any premises or any part thereof means: 607 "The person who is in occupation of the premises 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 co operative housing society registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960; but does not include a paying guest, a member of a family residing together, a person in the service or employment of the licensor, or a person conducting a running business belonging to the licensor or a person having any accommodation for rendering or carrying on medical or para medical services or activities in or near a nursing home, hospital or sanatorium, or a person having any accommodation in a hotel, lodging house, hostel, guest house, club, nursing home, sanatorium, dharamshala, home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by an employee or his spouse who on account of the exigencies of service or provision of a residence attached to his or her post or office is temporarily not occupying the premises, provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increases for such premises, and any additional sum for services supplied with such premises, or person having accommodation in any premises or part thereof for conducting a canteen, creche,dispensary or other services as amenities by any undertaking or institution; and the expressions `licence ', `licensor ' and `premises given on licence ' shall be construed accordingly. " The above definition is comprehensive one. A licence is a power or authority to do some act which, without such authority, could not lawfully be done. In the context of an immovable property a licence is an authority to do an act which would otherwise be a trespass. It passes no interest, and does not amount to a demise, nor does it give the licensee an exclusive right to the use of the property. The definition in the Rent Act includes any person in occupation under a subsisting agreement for licence given for a licence fee or charge of any premises or part thereof in a building vesting in or lease to a cooperative housing society registered or deemed to be registered under the 608 Maharashtra Cooperative Societies Act, 1960. The appellant would, otherwise, be included within this definition. But he has no subsisting licence, the same having been cancelled on 10.3.72. Section 15A of the Rent Act which was inserted by Maharashtra Act 17 of 1973 provides: "Certain licensee in occupation on 1st February 1973 to become tenants. (1) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not 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 . (2) The provisions of sub section (1) shall not affect in any manner the operation of sub section (1) of section 15 after the date aforesaid. " Thus, section 15A read with section 5(11) (bb) of the Rent Act makes the tenant one of status rather than of contract. Intention to create a licence as defined in that Act if the other requirements fulfilled would, therefore, be enough to confer that status from the specified date. The above provisions applies to person in occupation of any premises or part thereof which is not less than a room, as a licensee he shall on the date be deemed to have become a tenant on the first day of February 1973. The licence of the appellant was cancelled on 10.3.72. Again, in the instant agreement what has been given is only the use of the flat and the furnitures and fittings. `Licence ' had earlier been defined in section 52 of the : "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or 609 an interest in the property, the right is called a license. " In view of licence of the appellant having been cancelled on 10.3.72, licence as defined by the Rent Act itself, would not apply, to the appellant 's case. He would, therefore, not be protected under section 15A of the Rent Act. The learned counsel for the appellant submits that due to scarcity of accommodation, the appellant had to accept the terms that he would not, by virtue of the agreement of leave and licence, claim any right of tenancy or sub tenancy and that should not be a bar to his being given the benefit under the Rent Act. However, considering the facts and circumstances of this case we are not inclined to hold that the appellant should not be bound by the expressed intention in the agreement. In Chandavarkar Sita Ratna Rao vs Ashalata S.Guram, ; , this Court held that licence was a privilege and not an interest in property. A tenant, whose interest in the tenancy is determined for any reason but who is protected by the statute, was entitled to create a licence in favour of another person until a decree of eviction has been passed against him. A statutory tenant was in the same position as a contractual tenant until a decree for eviction is passed against him and the rights of contractual tenant including the right to create licence even if he was transferor of an interest which was not in fact the transfer of interest. If the licence have been created before February 1, 1973, the licensee must, by the express terms of section 15A of the Rent Act be deemed to be a tenant and he should, subject to provisions of the said Act be deemed tenant of the landlord on the terms and conditions of the agreement consistent with the provisions of the Act. At paragraph 58 of the report it was observed that there was no reason and there was nothing in the Rent Act or the Statement of Objects and Reasons to indicate that restricted meaning to the expression "licence" should be given. As the amended section said that whoever was in possession as a licensee should be deemed to have become for the purpose of the Act the tenant of the landlord and there was no warrant to restrict the ordinary meaning of that expression. If the restricted meaning was given then the apparent scheme or the purpose for introduction of the amendment would be defeated at least to a large section of licensees who were contemplated to be protected, as the objects of the Act sought to do. The Rent Act was amended by Maharashtra Act 17 of 1973. By 610 the Amending Act section 5(4A) and section 15A were introduced in the parent Act to confer on the licensee, who had a subsisting agreement of February 1, 1973 the status and protection of a tenant under the Rent Act. Section 15A required that the occupant must be in occupation of the premises as a licensee as defined in section 5(4A) on the 1st of February, 1973. If he be such a licensee, the non obstinate clause of section 15A (1) gives him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in any contract. In other words, even as against the express terms of the subsisting contract of licence,the licensee would enjoy the benefits of section 15A. But if he was not a licensee under a subsisting agreement on the 1st of February, 1973, then he did not get the advantage of the amending provision of the Rent Act. A person continuing in possession of the premises after termination, withdrawal or revocation of the licence continued to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises. Such a person by no stretch of imagination could be called a licensee. In D.H. Maniar and Ors. vs Waman Laxman Kudav; , , this position was made clear. The appellant in the instant case was not in possession as a licensee on 1st of February, 1973, the licence having been terminated prior to that date. This takes us to the next question, namely, whether the Cooperative Court had jurisdiction over the matter. Section 91(1) of the Maharashtra Cooperative Societies Act which deals with disputes, provides: "(1) Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution, elections of the committee or its officers other than the elections of committees of the specified societies including its officers, conduct of general meetings, management of business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated or by a creditor of the society, to a cooperative Court if both the parties thereto are one or other of the following: (a) a society its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society; 611 (b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society or a person who claims to be a member of the society. xxx xxx xxx xxx xxx xxx Under the above provision the matter of eviction of the appellant by the tenant co partner member of the society can be said to be touching the business of the society. In Deccan Merchants Cooperative Bank Ltd. vs M/s Dalichand Jugraj Jain & Ors., [1969] (1) SCR 887, it has been held that the word "business" in the expression `touching the business of a society ' in section 91 (1) does not mean affairs of the society. It has been used here in a narrower sense and means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye laws. It was, however, held that section 91 of the Maharashtra Cooperative Societies Act did not affect the provisions of section 26 of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947. Although both these provisions start by excluding "anything contained in any other law", two Acts could be harmonized best by holding that in matters covered by the Rent Act, its provisions rather than the provisions of the Maharashtra Cooperative Societies Act, should apply. The latter Act was passed in the main, to shorten litigation, lessen its cost and to provide a summary procedure for the determination of the disputes relating to internal management of the society. But under the Rent Act a different social objective was intended to be achieved and for achieving that social objective it was necessary that the dispute between the landlord and the tenant should be dealt with by the courts set up under the Rent Act and in accordance with the special provisions of that Act and this social objective did not impinge on the objective underlying the Maharashtra Cooperative Societies Act. In O.N.Bhatnagar vs Smt. Rukibai Narsindas & Ors. , ; , which was also case of Shyam Cooperative Housing Society Limited, it was held that the claim of the society together with such member for ejectment of a person who was permitted to occupy having become a nominal member thereof, upon revocation of licence was a dispute falling within the purview of section 1 of the Maharashtra Cooperative Societies Act, 1960 and that the proceeding under section 91(1) of the Maharashtra Cooperative Societies Act, 1960 were 612 not barred by the provisions of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The two Acts, could be best harmonized by holding that the matters covered by the Rent Acts, its provisions, rather than the provisions of the Cooperative Societies Act should apply. But where the parties admittedly did not stand in the jural relationship of landlord and tenant, as their dispute would be governed by section 91(1) of the Societies Act and that the appellant by virtue of his being a nominal member, acquired a right to occupy the flat as a licensee, but his rights were inchoate,. In the facts of the instant case upon the terms of sections 5(4A) and 15A of the Rent Act, it is clear that the appellant was not entitled to the protection of section 15A. The sine qua non for the applicability of section 15A of the Rent Act was that a licensee must be in occupation as on February 1, 1973 under a subsisting licence. It is not disputed that the appellant did not answer that description since the agreement of leave and licence in his favour admittedly stood terminated by the notice of the respondent No. 1 on 10.3.1972. That being so, the appellant was nothing but a rank trespasser and was not entitled to the protection of section 15A of the Rent Act and could not, therefore, plead the bar of section 28(1) thereof. In Hindustan Petroleum Corporation Ltd. & Anr. vs Shyam Cooperative Housing Society & Ors., ; , at paragraph 14 it was held under the facts of that case that the petitioner Hindustan Petroleum Corporation Ltd. was clearly protected under section 15A of the Rent Act and in that view of the matter the jurisdiction of the Registrar under Section 91(1) of the Cooperative Societies Act would be as laid down in O.N. Bhatnagar 's case (supra). The proceedings initiated under section 91 were accordingly quashed. This case is, therefore, distinguishable on facts. Following Bhatnagar 's case in Smt. Krishna Rajpal Bhatia and Ors. vs Miss Leela H. Advani & Ors., ; , where a tenant co partner member of a registered co partnership type cooperative housing society inducting another person into her flat for a term of eleven months subject to renewal of the term from time to time after obtaining society 's permission and after the person so inducted becoming a nominal member of the society and the agreement between the parties embodied in usual standard form of leave and licence, it was held that the tenant co partner member only created a licence and not a lease and that the Maharashtra Cooperative Societies Act, 1960 was applicable. There also the nominal membership of the society was obtained in terms of the society 's bye laws and the licence was 613 terminated by notice after expiry of the term, but the occupant was not vacating. Claim made by the co partner under section 91 of the Maharashtra Cooperative Societies Act, 1960 for ejectment of the occupant was held to constitute a `dispute touching the business of a society ' within the meaning of section 91 and hence the Registrar 's jurisdiction to entertain the claim was held not to have been barred under section 28 of the Rent Act. Applying the law laid down in the above decisions we are of the view that the instant dispute is one envisaged in section 91 of the Maharashtra Cooperative Societies Act and the Cooperative Courts rightly exercised jurisdiction. The next question, namely, section 91 is ultra vires the Article 14 of the Constitution of India to the extent it tries to reach persons who are not members is not tenable, inasmuch as the appellant is involved in a dispute touching the business of the Society and he was a nominal member of the Society by dint of his agreement of leave and licence and he was made so on his application. Result is that this appeal fails and it is dismissed, but under the facts and circumstances of the case without any order as to costs. Interim orders stand vacated. R.P. Appeal dismissed.

The second respondent was a tenant copartnership co operative Housing Society and father of the first respondent was its tenant co partner member. By an application dated 10.6.1969 he sought permission of the society to temporarily induct the appellant into his flat. On the same date the appellant applied to the said Society for its nominal membership stating that he intended to take the flat for temporary use and occupation, that he would not claim any right of permanent nature and that on receipt of notice he would vacate the flat. By an agreement of leave and licence dated 11.6.1969, the father of respondent No. 1 (licensor)gave use of the flat with its furniture and fittings to the appellant (licensee) on Rs. 1,000 per month as compensation for use and occupation for a period of 11 months with a facility of renewal of the agreement for two such further periods. The Managing Committee of the Society, by its Resolution dated 13.6.1969. I granted the permission. 593 The licensor by letter dated 22.1.1972 purported to terminate the licence w.e.f. 10.3.1972, and asked the appellant to vacate the flat, but the latter declined to do so. On receiving intimation from the licensor, the Society, by its letter dated 22.2.1972, required the appellant to vacate the flat and deliver its possession to the licenser before the stipulated date, but in vain. Instead, the appellant on 13.3.1972 applied to the Court of Small Causes, Bombay for fixation of standard rent of flat. In April 1972 the licensor and the Society raised a dispute under section 91 of the Maharashtra Co operative Societies Act, 1960 to recover possession from the appellant,who in turn filed a suit in the Court of Small Causes, Bombay for declaration that he was tenant of the flat. He also filed an interim application for stay of the dispute proceeding till disposal of his application for fixation of standard rent, which was rejected and his writ petition against the said order was also dismissed by the High Court on 7.9.1977. The Co operative Court, Bombay dismissed the dispute proceeding holding that the appellant was a licensee and not a tenant but the society was an idle party which acted in collusion with the licensor to evict the appellant. On appeal by the licenser and the Society, the Maharashtra State Co operative Appellate Court set aside the order of the Co operative Court, against which the appellant filed a writ petition before the High Court contending that the agreement, though style as a leave and licence, was a lease; that section 91 of the Maharashtra Co operative Societies Act was not attracted and could not have been invoked by the respondents; and that section 91 itself was ultra vires article 14 of the Constitution to the extent it tried to reach non members of co operative societies. The High Court dismissed the writ petition. Hence the present appeal by special leave. By Maharashtra Act 17 of 1973, sections 5(4A), and 15 A were introduced in the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947,to confer the status and protection of a tenant on a licensee, who, on the first day of Feb. 1973, had a subsisting agreement and was on that date in occupation of any premises or part thereof, which was not less than a room, as a licensee. On the question whether:(1) the agreement dated 11.6.1969 was one of leave and licence or if lease, and if it was so, whether the 594 occupant was entitled to benefit of section 15 A of the Rent Act; and (2) the matter was one touching the business of the society so as to attract s.19 of the Maharashtra co operative Societies Act within the jurisdiction of Co operative Courts. Dismissing the appeal, this Court HELD: 1.1 By mere use of the word lease or licence the correct categorisation of an instrument under law cannot be affected. Whether a particular grant amounts to lease or a licence, depends on its substance. If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. If there is a transfer of interest in law and exclusive possession is given to the grantee or where the ingredients of a lease are present and the licensee is, according to law, a tenant, then it is a lease and he ought to be given benefit of the Rent Act. [602B E] 1.2 In determining whether the agreement was a lease or licence, the test of exclusive possession, though of significance, is not decisive and exclusive possession itself will not amount to creation of interest nor would it militate against the concept of a licence, if the circumstances negative any intention to create a tenancy. [602G, E F] 1.3 The intention of the parties in making the agreement is determinative of the question whether it was a lease or licence. The intention has to be gathered from the terms of the agreement construed in the context of the surrounding, antecedent and consequent circumstances. The crucial test would be what the parties intended. If in fact it was intended to create an interest in the property it would be a lease, if it did not, it would be a licence Interest for this purpose means a right to have the advantage accruing from the premises or a right in the nature of property in the premises but less than title. [603H, 602F H] 2. In the instant case, it is clear from the tenor of the agreement that the intention of the parties was to create only a licence and not a lease. Positively it speaks of a licence for the use of the flat and negatively that the licensee would not claim any tenancy or subtenancy. What was given to the licensee was the use of the flat with furniture, fittings etc., which could not be said to have created any interest in the flat though in effect the use continued for a stipulated period of time. [602A C] 595 Board of Revenue etc. vs A.M. Ansari etc. ; , ; Tarkeshwar Sio Thakur Jiu vs Dar Dass Dey & Co. & Ors., ; , relied on; Sohan Lal Naraindas vs Laxmidas, Raghunath Gadit , followed. Antoniades vs Villiers and Anr., [1988] (3) All. E.R. 1058; N.E. Railway vs Hastings, , Isaac vs Hotel De Paris, Ltd. , Booker vs Palmer referred to. 3.1 Section 15A read with section 5(11)(bb) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, makes the tenant one of status rather than of contract. Intention to create a licence as defined in the Act if the other requirements fulfilled, would, therefore, be enough to confer that status from the specified date. Section 15A required that the occupant must be in occupation of the premises as a licensee as defined in s.5(4A) on the first day of Feb. 1973. If he be such a licensee, the non obstante clause of s.15A(1) gives him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in any contract. Even as against the express terms of the subsisting contract licence, a person in occupation of any premises or part thereof, which is not less than a room, as a licensee, shall, in view of these provision, be deemed to have become a tenant on the first day of Feb. 1973, and would enjoy the benefits of section 15A. But if he was not a licensee under a subsisting agreement on the 1st of Feb. 1973, then he did not get the advantage of the amending provision of the Rent Act. [608E F, 610AB] 3.2 The sine qua non for the applicability of section 15A of the Rent Act was that a licensee must be in occupation as on Feb.1, 1973, under a subsisting licence. A person continuing in possession after termination, withdrawal or revocation of the licence is a trespasser or a person who has no semblance of any right to continue in occupation of the premises. Such a person by no stretch of imagination could be called a licensee. [612B C, 610C] 4. The appellant would, otherwise, be included in the definition of licensee under section 5(4A) of the Rent Act, but as he had no subsisting licence, the same having stood terminated by notice on 10.3.1972, the licence as defined by the Rent Act itself would not apply to appellant 's case, and he was nothing but a rank trespasser not entitled to the protection of section 15A of the Rent Act and could not, therefore, plead the bar of section 28(1) thereof.[608A, 609A, 612C D] 596 D.H. Maniar and Ors. vs Waman Laxman Kudav, ; , O.N. Bhatnagar vs Smt. Rukibai Narsindas & Others, ; , relied on. Chandavarkar Sita Ratna Rao vs Ashalata section Guram; , , referred to. Hindustan Petroleum Corporation Ltd. & Anr. vs Shyam Cooperative Housing Society & Ors, ; , distinguished. The matter of eviction of the appellant was a dispute touching the business of the society as envisaged by s.91 of the Maharashtra Co operative Societies Act and the Co operative Courts rightly exercised jurisdiction.[611B; 613B] Smt. Krishna Rajpal Bhatia and Ors. vs Miss Leela H. Advani & Ors., ; , relied on. Deccan Merchants Cooperative Bank Ltd. vs M/S Dalichand Jugraj Jain & Ors., [1969] 1 SCR 887 referred to. Since the appellant was involved in a dispute touching the business of the society of which he was a nominal member, his contention that section 91 of the Maharashtra Co operative Societies Act to the extent it tries to reach persons who are not members is ultra vires article 14 of the Constitution, was not tenable. [613C D]

Appeal No. 233 of 1954. Appeal from the judgment and decree dated August 22, 1950, of the Bombay High Court in Appeal No. 80 of 1946 from original decree, arising out of the judgment and decree dated October 19, 1945, of the Court of Civil Judge, Senior Division, Dharwar, in Special Suit No. 64 of 1943. A. V. Viswanatha Sastri and M. section K. Sastri, for the appellants. A. section R. Chari, Bawa Shivcharan Singh and Govindsaran Singh, for respondents Nos. 2 4. 1958. September 24. The judgment of Imam and Kapur JJ. was delivered by Kapur J. Sinha J. agreed to the order proposed. KAPUR J. This is an appeal against the judgment and decree of the High Court of Bombay varying the decree of the trial Court decreeing the plaintiff 's suit for possession by partition of joint family property. The facts of the case lie in a narrow compass. M. B. Jakati, defendant No. 1, was the Managing Director of Dharwar Urban Co operative Bank Limited which went into liquidation, and in that capacity he was receiving a yearly remuneration of Rs. 1,000. As a result of certain proceedings taken against defendant No. 1, M. B. Jakati, by the liquidator of the Bank, a payment order for Rs. 15,100 was made by the Deputy Registrar of Co operative Societies on April 21, 1942. In execution of this payment order a bungalow belonging to M. B. Jakati, defendant No. 1, was attached by the Collector under the Bombay Land Revenue Code on July 27, 1942. Notice for sale was issued on November 24, 1942, and the proclamation on December 24, 1942. The sale was fixed for February 2, 1943. On January 16, 1943, M. B. Jakati defendant No. 1 applied for postponing the sale which was rejected. The auction sale was held on February 2, 1943, and was confirmed on June 23, 1943, the purchaser was section N. Borkar, defendant No. 7, now respondent No. 1. On February 10, 1944, respondent No. 1 sold the property to defendants 8 to 10 who are respondents 2 to 4. 1387 The following pedigree table will assist in understanding the case: Madhavarao Balakrishan Jakati Deft. 1 Bhimabai 2 Krishnaji Shriniwas Shantibai Indumati Plff. 1 Plff. 1(a) daughter daughter Deft. No. 3 Deft. No. 4 On January 15, 1943, Krishnaji a son of defendant No. 1 brought a suit for partition of the joint family property and possession of his separate share alleging inter alia that the purchase by respondent No. 1 of the bungalow was not binding on the joint family as "it was not liable to be sold for the illegal and immoral acts on the part of defendant No. 1 which were characterised as misfeasance "; that the auction sale was under section 155 of the Bombay Land Revenue Code under which only " the right, title and interest of the defaulter " could be sold and therefore the right, title and interest of only the father, defendant No. 1 was sold and not that of the other members. The plaintiff claimed 1/4 share of the property and also alleged that he was not on good terms with his father who had neglected his interest; that he was staying with his mother 's sister and was not being maintained by his father and mother. On January 12, 1944, appellant No. 1 filed his written statement supporting the claim for partition and claiming his own share. He supported the claim of the then plaintiff that the sale in favour of respondent No. 1 was not binding on the joint family. Defendant No. 2, now appellant No. 2, the mother, also supported the plaintiff 's claim and on the death of Krishnaji, she claimed his i share as his heir. After the death of the original plaintiff Krishnaji, Shriniwas appellant No. 1 was substituted as plaintiff on June 28, 1944. The suit was mainly contested by respondents 1 to 4. Respondent No. 1 pleaded that plaintiff 's suit for partition was collusive having been brought at the instance of the defendant No. 1, M. B. Jakati, and it was not bona fide; that defendant No. 1 was made 1388 liable at the instance of the liquidator of the Dharwar Urban Co operative Bank Ltd., for misfeasance because he acted negligently in the discharge of his duties as managing director of the Bank; that the debt was binding on the family as defendant No. 1, M. B. Jakati, had been receiving a yearly remuneration from the Bank and the properties were sold in payment of a debt binding on the family and therefore the sale in execution of the payment order could not be challenged as the sons were under a pious obligation under the Hindu law to discharge the debts of their father; that the sale could only be challenged on proof of the debt of defendant No. 1 being for an " immoral or illegal purpose. These pleadings gave rise to several issues. The learned Civil Judge, held that the suit was collusive; that the liability which defendant No. 1 incurred was avyavaharika and was therefore not binding on the sons and thus appellant No. 1 would have 1/3 share in the joint family property, defendant NO. 1 1/3 and appellant No. 2 also 1/3. He therefore declared the shares as above in the whole of the joint family property including the bungalow which is the only property in which the respondents are interested and which is in dispute in this appeal. On appeal the High Court held that the debt was not avyavaharika as there was no evidence to support the finding of the trial Court, the order of the Deputy Registrar being in the nature of a judgment to which neither the sons nor the auction purchasers were parties and therefore it was not " evidence of anything except the historical fact that it was delivered". In regard to the question as to what interest passed to the auction purchaser on a sale under section 155 of the Bombay Land Revenue Code, it held that the whole estate including the share of the sons was sold in execution of the payment order and therefore qua that property the sons had no interest left. The High Court varied the decree to this extent and the plaintiffs have come up in appeal to this Court by certificate of the High Court of Bombay. The case of the appellants is (1) that the debt was avyavaharika and therefore in an auction sale the S.C.R. SUPREME COURT REPORTS 1389 interest of the sons and other members of the joint family did not pass to the auction purchaser; (2) that even if the debt was not avyavaharika the institution of the suit for partition operated as severance of status between the members of the family and therefore the father 's power of disposition over the son 's share had come to an end and consequently in the auction sale the share of the sons did not pass to the auction purchaser; and (3) that what could legally be sold under section 155 of the Bombay Land Revenue Code was the right, title and interest of the defaulter i. e. of the father alone which could not include the share of the other members of the joint family. The first question for decision is whether the debt of the father was avyavaharika. This term has been variously translated as being that which is not lawful or what is not just or what is not admissible under the law or under normal conditions. Colebrooke translated it as " a debt for a cause repugnant to good morals ". There is another track of decision which has translated it as meaning " a debt which is not supported as valid by legal arguments ". The Judicial Committee of the Privy Council in Hem Raj alias Babu Lal vs Khem Chand (1) held that the translation of the term as given by Colebrooke makes the nearest approach to the true conception of the term used in the Smrithis texts and may well be taken to represent its correct meaning and that it did not admit of a more precise definition. In Toshanpal Singh vs District Judge of Agra (2) the Judicial Committee held that drawings of monies for unauthorised purposes, which amounted to criminal breach of trust under section 405 of the Indian Penal Code, were not binding on the sons, but a civil debt arising on account of the receipt of monies by the father which were not accounted for could not be termed avyavaharika. In the case now before us the appellants have empted to prove that the debt fell within the term avyavaharika by relying upon the payment order and (1)(1943) L.R. 70 I.A. 171, 176. (2) (1934) L.R. 61 I.A. 350. 1390 the findings given by the Deputy Registrar in thepayment order where the liabity was inter alia based on a breach of trust. Any opinion given in the order of the Deputy Registrar as to the nature of the liability of defendant No.1, M. B. Jakati, cannot be used as evidence in the present case to determine whether the debt was avyavaharika or otherwise. The order is not admissible to prove the truth of the facts therein stated and except that it may be relevant to prove the existence of the judgment itself, it will not be admissible in evidence. Section 43 of the Indian Evidence Act, the principle of which is, that judgments excepting those upon questions of public and general interest, judgment in rem or when necessary to prove the existence of a judgment, order or decree, which may be a fact in issue, are irrelevant. It was then submitted that the pleadings of respondent No. 1 himself show that the debt was of an immoral or illegal nature. In his written statement, respondent No. 1 had pleaded that the liquidator of the Bank had charged defendant No. 1 with misfeasance because he was grossly negligent in the discharge of his duty and responsibility as managing director and that after a thorough enquiry the Deputy Registrar held misfeasance proved and ordered a contribution of Rs. 15,100 by him. As we have said above the translation given by Colebrooke of the term avyavaharika is the nearest approach to its true concept i. e. " any debt for a cause repugnant to good morals ". The managing director of a Bank of the position of defendant No. 1 who should have been more vigilant in investing the monies of the Bank cannot be said to have incurred the liability for a cause " repugnant to good morals ". We are unable to subscribe to the proposition that in the modern age with its complex institutions of Banks and Joint Stock Companies governed by many technicalities and complex system of laws the liability such as has arisen in the present case could be called avyavaharika. The debt was therefore binding on the sons. The effect of severance of status brought aboutthe filing of the suit on January 25, 1943, made the basis of the argument that only the share of the father could be seized in execution of the payment order made against him. This would necessitate an examination into the rights and liabilities of Hindu sons in a Mitakshara coparcenary family where the father is the karta. In Hindu law there are two mutually destructive principles, one the principle of independent coparceiiary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge their father 's debts not tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts. According to the Hindu law givers this pious duty to pay off the ancestors ' debts and to relieve him of the death torments consequent on nonpayment was irrespective of their inheriting any property, but the courts rejected this liability arising irrespective of inheriting any property and gave to this religious duty a legal character. Masit Ullah vs Damodar Prasad (1). For the payment of his debts it is open to, the father to alienate the whole coparconary estate including the share of the sons and it is equally open to his creditors to proceed against it; but this is subject to the sons having a right to challenge the alienation or protest against a creditor proceeding against their shares on proof of illegal or immoral purpose of the debt. These propositions are well settled and are not within the realm of controversy. (Panna Lal vs Mst. Naraini (2); Girdharee Lal vs Kantoo Lal and Mudhan Thakoor vs Kantoo Lal (3) ; Suraj Bansi Koer vs Sheo Prasad Singh (4); Brij Narain vs Mangla Prasad (5). In the last mentioned case the Privy Council said: " Nothing clearer could be said than what was said by Lord Hobhouse delivering the judgment of the Board in Nanomi Babusin vs Modun Mohan (6) already quoted: " Destructive as it may be of the principle of (1) (1926) L.R. 53 I.A. 204. (2) ; , 552, 553, 556, 5 59. (3) (1874) L.R. 1 I.A. 321, 333. (4) (1878) L.R. 6 I.A. 88, 101. (5) (1923) L.R. 51 I.A. 129, 136. (6) (1885) L.R. 13 I.A. 1, 17, 18. 177 1392 independent coparcenary rights in the sons, the decisions have for sometime established the principle that the sons cannot set up their rights against their father 's alienation for an antecedent debt, or against his creditor 's remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint estate, their Lordships think that there is no conflict of authority ". There is no discrepancy of judicial opinion as to the pious duty of Hindu sons. In Panna Lal vs Mst. Naraini (1) this Court approved the following dictum of Suleman A. C. J. in Bankeylal vs Durga Prasad (2): The Hindu Law texts based the liability on the pious obligation itself and not on the father 's power to sell the sons ' share ". So great was the importance attached to the payment of debts that Hindu law givers gave the non payment of a debt the status of sinfulness and such non payment was wholly repugnant to Hindu concept of son 's rights and liabilities. In Bankeylal vs Durga Prasad (2) Lal Gopal Mukherji J. said at p. 896: " A perusal of text books of Smriti dealing with debts will show that under the Hindu Law the nonpayment of a just debt was regarded as a very heinous sill. " The liability of the Hindu son based on his pious obligation again received the approval of this Court in Sudheshwar Mukherji vs Bhubneshwar Prasad Narain Singh (3), where the following observation made in Panna Lal 's case (1) (at p. 184): " The father 's power of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation which the Hindu law imposed upon the sons; or it may be one of the means of enforcing it, but it is certainly not the measure of the entire obligation was reiterated. And again at p. 183 Mukherjea J. (as he then was) said:., " It is a special liability created on purely religious (1) ; , 552, 553, 556, 559. (2) All. 868, 896. (3) ; , 183, 184. 1393 grounds and can be enforced only against the sons of the father and no other coparcener. The liability, therefore, has its basis entirely on the relationship between the father and the son ". Therefore unless the son succeeds in proving that the decree was based on a debt which was for an immoral or illegal purpose the creditor 's right of seizing in execution of his decree the whole coparcenary property including the son 's share remains unaffected because except where the debt is for an illegal or immoral purpose it is open to the execution creditor to sell the whole estate in satisfaction of the judgment obtained against the father alone. Sripat Singh vs Tagore (1). The necessary corollary which flows from the pious obligation imposed on Hindu sons is that it is not ended by the partition of the family estate unless a provision has been made for the payment of the just debts of the father. This again is supported by the authority, of this Court in Pannatal 's case (2) where Mukherjea J. said at p. 559: " Thus, in our opinion, a son is liable, even after partition for the pre partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition ". The liability of the sons is thus unaffected by partition because the pious duty of the sons to pay the debt of the father, unless it is for an immoral or illegal purpose, continues till the debt is paid off and the pious obligation incumbent on the sons to see that their father 's debts are paid, prevents the sons from asserting that the family estate so far as their interest is concerned is not liable to purge that debt. Therefore even though the father 's power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition ' the right of the judgment creditor to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons. There does not seem to be any divergence of judicial opinion in regard (1) (1916) L.R. 44 I.A.1. (2) ; , 552, 553, 556, 559. 1394 to the Hindu son 's liability to pay the debts of his father after partition, and by the mere device of entering into partition with their father, the sons cannot get rid of this pious obligation. It has received the approval of this Court in Panna Lal vs Mst. Naraini (1) and Sidheshwar Mukherji vs Bubneshwar Prasad Narain Singh (2) where Mukherjea J. observed in the latter case at p. 184: " It is settled law that even after partition the sons could be made liable for the pre partition debts of the father if there was no proper arrangement for the payment of such debts at the time when the partition was effected, although the father could have no longer any right of alienation in regard to the separated share of the sons The question then arises how the liability of the sons is to be enforced. Another principle of Hindu law is that in a coparcenary family the decree obtained against the father is binding on the sons as they would be deemed to have been represented by the father in the suit: Kishan Sarup vs Brijraj Singh (3). As was pointed out in Sidheshwar Mukherji 's case (2), the sons are not necessary parties to a money suit against the father who is the karta, but they may be joined as defendants. The result of the partition in a joint family is nothing more than a change in the mode of enjoyment and what was held jointly is by the partition held in severalty and therefore attachment of the whole coparcenary estate would not be affected by the change in the mode of enjoyment, because the liability of the share which the sons got on partition remains unaffected as also the attachment itself which is not ended by partition (section 64 C. P. C. is a useful guide in such circumstances. Dealing with the question as to how the interest of the sons in joint family property can be attached and sold, Mukherjea J. as he then was, observed at p. 185 in Sidheshwar Mukherji 's case (2): Be that as it may, the money decree passed against the father certainly created a debt payable by (1) ; , 552, 553, 556, 559. (2) ; , 183, i84. (3) All. 932. 1395 him. If the debt was not tainted with immorality, it was open to the creditor to realise the dues by attachment and sale of the sons ' coparcenary interest in the joint property on the principles discussed above. As has been laid down by the Judicial Committee in a series of cases, of which the case of Nanomi Babuasin vs Modun Mohun (1) may be taken as a type, the creditor has an option in such cases. He can, if he likes, proceed against the father 's interest alone but he can, if he so chooses, put up to sale the sons ' interest also and it is a question of fact to be determined with reference to the circumstances of each individual case whether the smaller or the larger interest was actually sold in execution ". But it has contended that a partition after the decree but before the auction sale limited the efficacy of the sale to the share of the father even though the sale in fact was of the whole estate, including the interest of the sons, because after the partition the father no longer possessed the right of alienation of the whole coparcenary estate to discharge his debts. But this contention ignores the doctrine of pious obligation of the sons. The right of the pre partition creditor to seize the property of the erstwhile joint family in execution of his decree is not dependent upon the father 's power to alienate the share of his sons but on the principle of pious obligation on the part of the sons to discharge the debt of the father. The pious obligation continues to exist even though the power of the father to alienate may come to an end as a result of partition. The consequence is that as between the sons ' right to take a vested interest ' jointly with their father in their ancestral estate and the remedy of the father 's creditor to seize the whole of the estate for payment of his debt not contracted for immoral or illegal purpose, the latter will prevail and the sons are precluded from setting tip their right and this will apply even to the divided property which, under the doctrine of pious obligation continues to be liable. for the debts of the father. Therefore where the joint ancestral property including the share of the sons has (1) (1885) L.R. 13 I. A. 1, 17, 18. 1396 passed out of the family in execution of the decree on the father 's debt the remedy of the sons would be to prove in appropriate proceedings taken by them the illegal or immoral purpose of the debt and in the absence of any such proof the sale will be screened from the sons ' attack, because even after the partition their share remains liable. Girdhareelal vs Kantoolal (1), Suraj Bansi Koer vs Sheo Prasad Narain Singh(2) Mussamat Nanomi Babuasin vs Modwn Mohun (3) Chandra Deo Singh vs Mata Prasad (4) which was approved by the Privy Council in Sahu Ram Chander vs Bhup Singh (5), Pannalal vs Naraini (6) and Sidheshwar Mukherji 's case (7). Our attention was drawn to two decisions, one by the High Court of Bombay in Ganpatrao vs Bhimrao (8) that in order to make the share of the sons liable after partition they should be brought on the record and the other of the Madras High Court in Kameshwaramma vs Venkatasubba Row(9) that the creditor has to bring another suit against the sons, obtain a decree against them limited to the shares allotted to them on partition and then attach and sell their share unless the partition was not bona fide in which case the decree could be executed against the joint family property. But the decision in these cases must be confined to their own facts. It is true that the right of the father to alienate for payment of personal debt is ended by the partition, but as we have said above, it does not affect the pious duty of the sons to discharge the debt of their father. Therefore where after attachment and a proper notice of sale the whole estate including the sons ' share, which was attached, is sold and the purchaser buys it intending it to be the whole coparcenary estate, the presence of the sons eonomine is not necessary because they still have the right to challenge the sale on showing the immoral or illegal purpose of the debt. In our opinion where the pious obligation exists and partition takes place after the decree and (1) (1874) L.R. i I.A. 321. (2) (1878) L.R. 6 I.A. 88, 101. (3) (1885) L.R. 13 I.A. Y. (4) All. 176, 196. (5) (1916) L.R. 44 I.A. 1. (6) ; , 552, 553, 556, 559. (7) ; , 183, Bom. (9) Mad. 1397 pending execution proceedings as in the present case, the sale of the whole estate in execution of the decree cannot be challenged except on proof by the sons of the immoral or illegal purpose of the debt and partition cannot relieve the sons of their pious obligation or their shares of their liability to be sold or be a means of reducing the efficacy of tile attachment or impair the rights of the creditor. Reliance is placed on the judgment in Khiarajmal vs Daim (1) where the Privy Council held that the sale cannot be treated as void on the ground of mere irregularity but the Court has no jurisdiction to sell the property of persons " not parties to the proceedings or properly represented on the record ". There two such persons were Alibux and Naurex. As against Alibux there was no decree. He was not a party to the suit, and it was held by the Privy Council that his interest in the property " seems to have been ignored altogether ". He was not even mentioned as a debtor in the award on the basis of which the decree, which was executed was made. Similarly Naurez was not represented in either of the suits and therefore there was no decree against him and the sale of his property also was therefore without jurisdiction and null and void. This case cannot apply to sons in a joint Hindu family where a father represents the family and the decree is executable against the shares of the sons while the coparcenary continues and the liability of their shares continues after partition. Sat Narain vs Das (2) is equally inapplicable to the present case. There the Privy Council was dealing with the father 's power of disposal of property before and after partition which power vests in the Official Assignee on his bankruptcy, the question of the right of the judgment creditor to proceed in execution against the divided shares of sons which had been attached before partition was not a point in controversy. There was no decision on the powers of an executing court to proceed against the shares of the sons but the question related to voluntary alienations by a father for payment of his debts not incurred for an immoral or illegal purpose. (1) (1904) L.R. 32 I.A. 23. (2) (1936) L.R. 63 I.A. 384. 1398 In cases where the sons do not challenge the liability of their interest in the execution of the decree against the father and the Court after attachment and proper notice of sale sells the whole estate and the auction purchaser purchases and pays for the whole estate, the mere fact that the sons were eo nomine not brought on the record would not be sufficient to defeat the rights of the auction purchaser or put an end to the pious obligation of the sons. As was pointed out by Lord Hobhouse in Malkarjun Bin Shidramappa Pasare vs Narhari Bin Shivappa (1): " Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters, even if lie knows the facts; and that if he is to be held bound to enquire into the accuracy of the Court 's conduct of its own business, no purchaser at a Court sale would be safe. Strancers to a suit are justified in believing that the Court has done that which by the directions of the Court it ought to do. " In Mussamat Nanomi Babuasia vs Modun Mohun Lord Hobhouse said at p. 18: " But if the fact be that the purchaser has bargained and paid for the entirely, he may clearly defend his title to it upon any ground which would have justified a sale if the sons had been brought in to oppose the executing proceedings. " The question which assumes importance in an auction sale of this kind therefore is what did the court intend to sell and did sell and what did the auction purchaser purport to buy and did buy and what did he pay for. One track of decision of which Shambu Nath Pandey vs Golab Singh(3) is an instance, shows when the father 's share alone passes. In that case the father alone was made a party to the proceedings. The mortgage, the suit of the creditor and the decree and the sale certificate all purported to affect the rights of the father and his interest alone. It was therefore held that whatever the nature of the debt, only the father 's (1) (1900) L.R. 27 I.A. 216, 225. (2) (1885) L.R. 13 I.A. i. (3) (1887) L.R. 14 I.A. 77. 1399 right and interest was intended to pass to the auction purchaser. In Meenakshi Naidu vs Immudi Kanaka Rammaya Kounden(1) which represents the other track of decision, the Privy Council held that upon the documents the court intended to sell and did sell the whole of the coparcenary interest and not any partial interest. The query in decided cases has been as to what was put up for sale and was sold and what the purchaser had reason to think he was buying in execution of the decree. Mussamat Nanomi Babuasin vs Modun Mohun (2) (supra), Bhagbut Persad vs Mussamat Girja Koer (3), Meenakshi Naidu vs Immudi Rammaya Kounden (1) and Rai Babu Mahabir Persad vs Rai Markunda Nath Sahai (4) and Daulat Ram vs Mehr Chand (5). In the present case the payment order was made by the Deputy Registrar on April 21, 1942, and after the order had been sent to the Collector for recovery, the property was attached on April 24, 1942, and notice of sale was issued on November 24, 1942, and was published under sections 165 and 166 of the Bombay Land Revenue Code. The proclamation of sale was dated December 12, 1942. The property put up for sale was plot No. 36 D measuring 6 acres and one guntha and its value was specified as 13,000 rupees. There was a note added : " No guarantee is given of the title of the said defendant or of the validity of any of the rights, charges or interests claimed by third parties ". The order confirming the sale also shows that the whole bungalow was sold. It was valued at Rs. 16,000 and there was a mortgage of Rs. 2,000 against it and what was sold and confirmed by this order was the whole bungalow. The sale certificate was in regard to the whole bungalow i. e. City Survey No. 67 D measuring 6 acres and one guntha the sale price being Rs. 13,025. There is little doubt therefore that what was put up for auction sale was the whole bungalow 2,0.6 (1) (1888) L.R. 16 I.A. i. (3) (1888) L.R. 15 I.A. 99. (5) (1889) L.R. 14 I.A. 187. 178 (2) (1885) L.R. 13 I.A. i. (4) (1889) L.R. 17 I.A. 11, 16. 1400 and what the auction purchaser purported to buy and paid for was also the whole bungalow and not any fractional share in it. It is a case where not only was the payment order passed before the partition but the attachment was made and the sale proclamation was issued before the suit for partition was filed and the sale took place of the whole property without any protest or challenge by the sons and without any notice to the Collector or the judgment creditor of the filing of the suit for partition. In such a case respondent No. 1 is entitled to defend his title upon the grounds which would have justified the sale had the appellants been brought on record in execution proceedings. The binding nature of the decree passed on the father 's debts not tainted with immorality or illegality, and the pious obligation imposed on the sons under the Mitakshara law would be sufficient to sustain the sale and defeat the sons ' suit in the same way and on the same grounds as in the case of execution proceedings. Nanomi Babuasin vs Modun Mohun (1). Consequently whether the sons were made parties to the execution proceedings or brought a suit challenging the sale of their shares the points for decision are the same the nature of the debts and liability of the sons under Hindu law, and these are the determining factors in both the cases i.e. the sons being parties to the execution proceedings or their suit challenging the sale of their shares. The effect of attachment on the severance of status by the filing of a suit by one of the members of the coparcenary whose share was liable in execution of the decree has not been debated at the bar and how exactly it would affect the rights of the parties need not therefore be decided in this case. As a consequence it would not be necessary to discuss the pronouncements of the Privy Council in Suraj Bansi Koer vs Sheo Prasad Singh (2) ; Moti Lal vs Karrabuldin (3) Ragunath Das vs Sundar Das Khetri (4); Ananta Padmanabha Swami vs Official Receiver, Secunderabad (5). (1) (1885) L.R. 13 I.A. i. (3) (1897) L.R. 24 I.A. 170. (2) (1878) L.R. 6 I.A. 88, 101. (4) (1914) L.R. 41 I.A. 251. (5) (1933) L.R. 60 I.A. 167, 174 5. 1401 The argument based on the interpretation of the words I right, title and interest of the defaulter ' in section 155 of the Bombay Land Revenue Code was that it was only the share of the defaulter himself which was and could be put up for auction sale. That the whole of the property was put up for sale, was sold and was purchased as such is shown by the documents to which reference has already been made viz., the notice of November 24, 1942, proclamation of sale of Decem ber 24, 1,942, the order of confirmation of sale dated June 28, 1943, and the sale certificate issued by the Collector. The Civil Procedure Code at the time of the enactment of the Bombay Land Revenue Code required that the property sold in execution should be described as " right, title and interest of the judgment debtor " and the same words have been used in section 155 of the Bombay Land Revenue Code. It is a question of fact in each case as to what was sold in execution of the decree. In Rai Babu Mahabir Prasad vs Markunda Nath Sahai (1) Lord Hobhouse observed as follows at p. 16 : " It is a question of fact in each case, and in this case their Lordships think that the transactions of the 4th and 5th of January, 1875, and the description of the property in the sale certificate, are conclusive to shew that the entire corpus of the estate was sold. " Similarly in Meenakshi Naidu vs Immudi Kanaka Rammaya Kounden (2) the whole interest of the coparcenary was held to be sold taking into consideration the evidence which had been placed on the record. Lord FitzGerald at p. 5 pointed out the difference where only the father 's interest was intended to pass: "In Hurdey Narain 's case" (Hurdey Narain vs Rooder Perkash (3)) " all the documents shewed that the Court intended to sell and that it did sell nothing but the father 's share the share and interest that he would take on partition, and nothing beyond it and this tribunal in that case puts it entirely upon the ground (1) (1889) L.R. 17 I.A. 11, 16. (2) (1888) L.R. 16 I.A. i. (3) (1883) L. R. 11 I. A. 26, 29. 1402 that everything shewed that the thing sold was "whatever rights and interests, the said judgment debtor had in the property " and nothing else ". In Sripat Singh vs Tagore (1) the "right, title and interest of the judgment debtor" were sold and there also it was held to convey the whole coparcenary estate and it was remarked that it was of the utmost importance that the substance and not merely the technicality of the transaction should be regarded. What is to be seen is what was put up for sale what the court intended to sell and what the purchaser was intending to buy and what he purported to buy. Counsel for the appellants relied on Shambu Nath Panday vs Golab Singh(2) where it was held that right and interest of the father meant personal interest but in that case as we have pointed out, the documents produced all showed that the father 's interest alone was intended to pass. In Mulgund Co operative Credit Society vs Shidlingappa Ishwarappa (3) it was held that the sale under the Bombay Land Revenue Code has the same effect as the sale by the Civil Court. The language used in the Bombay Land Revenue Code and the then existing Civil Procedure Code is similar i.e. " the right, title and interest of the defaulter " in one case and " of the judgment debtor " in the other. This is supported by the observation of the Privy Council in Rai Babu Mahabir Prasad vs Markunda Nath Sahai (4) and as to what passed under the sale does not become any different merely because the sale is held under section 155 of the Bombay Land Revenue Code rather than the Code of Civil Procedure. The effect in both cases is the same. We hold therefore (1) that the liability of the sons to discharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the lifetime and after the death of the father and which does not come to an end as a result of partition of the joint family property. All that results from partition is that the right of the father to make an (i) (1916) L.R. 44 I.A. i. (3) A.I.R. 194i Bom. (2) (1887) L.R. 14 I.A. 77. (4) (1880) L.R. 17 I.A. 11, 16. 1403 alienation comes to an end. (2) Where the right, title and interest of a judgment debtor are set up for sale as to what passes to the auction purchaser is a question of fact in each case dependent upon what was the estate put up for sale, what the Court intended to sell and what the purchaser intended to buy and did buy and what he paid for. (3) The words di right, title and interest " occurring in section 155 of the Bombay Land Revenue Code have the same connotation as they had in the corresponding words used in the Code of Civil Procedure existing at the time the Bombay Land Revenue Code was enacted. (4) In execution proceedings it is not necessary to implead the sons or to bring another suit if severance of status takes place pending the execution proceedings because the pious duty of the sons continues and consequently there is merely a difference in the mode of enjoyment of the property. (5) The liability of a father, who is a managing director and who draws a salary or a remuneration, incurred as a result of negligence in the discharge of his duties is not an avyavaharika debt as it cannot be termed as " repugnant to good morals ". In the result the appeal fails and is dismissed with costs. SINHA J. I agree to the order proposed. Appeal dismissed.

The respondent Delhi Cloth Mills has a complex over an area of 63 acres at Bara Hindu Rao and Kishan Gnaj, Delhi, which is a nonconforming area and the industry of the kind in which the mill is engaged in was required to be shifted consequent upon the enforcement of Master Plan prepared by Delhi Development Authority under the Delhi Development Act, 1966, which plan amongst other things was to assign land use. The Delhi Cloth Mills in September 1982, approached the DDA and put forth a proposal for shifting the mill and for redeveloping the Mill area for group housing and flatted factories. The DDA by Resolution No. 26 agreed to the scheme to be implemented in phases but it took care to examine the matter further from Delhi 's economics point of view. In September 1983, the DDA turned down the request of the respondent for allotment of an alternate site in a conform ing area for shifting the mill. Thereupon the Mill applied to the Secretary, Labour/Labour Commissioner, Delhi Adminis tration for permission to close down the Mill under Sec. 25(D) of the Industrial Disputes Act, on the ground that the Mill could not be kept located in a non coforming area as otherwise penal consequences would follow. On April 15, 1985, the request of the Mill was turned down by the Secre tary, Labour/Labour Commissioner. Thereupon the Delhi Mill filed a writ petition before the High Court for direction that the DDA be directed to implement its resolution No. 26 dated Feb. 1, 1983. It may be mentioned here that during the pendency of the writ petition before the High Court, DDA had reviewed the situation and passed a fresh resolution No. 3 dated August 1, 1986 reviewing the earlier resolution dated Feb. 1, 1983 recalling the grant of approval with regard to the scheme propounded by the DCM. Thereafter DDA reiterated its Resolution of August 1, 1986 by another resolution dated November 3, 1986. 952 The High Court quashed the two later resolutions and re stored the resolution dated February 1, 1983. It took the view that the Mill could not be kept working in a non con forming area as otherwise it would attract penal action under the law after the lapse of three years from Jan. 18, 1986. Both Union of India and DDA have filed appeals in this Court by special leave against the High Court 's order. In the meantime DCM filed a writ petition in the High Court which was allowed by a Full Bench of the High Court on March 1, 1989 ordering closure of the Mill. Delhi Adminis tration filed special leave petition in this Court against the said order and the Mill filed another special leave petition against the order of the High Court dated 3.3.1989 extending time for grant of permission by the Lt. Governor for Closure of the factory till March 30, 1989. When these matters reached hearing in this Court, DCM and its employees had reached an agreement in the matter of closure of the factory. The Special Leave Petitions were therefore dis missed by this Court; and on the file of this Court remained these two appeals. Dismissing the appeals with a direction, this Court, HELD: The factory has been ordered to be closed and the employer and the employees have entered a settlement. The supposed basis for reviewing or recalling resolution dated February 1, 1983 on the basis of its affectation to the industry and economy of Delhi as also to the workmen has vanished. On this footing and on the events which have come by, the challenge to the judgment and order of the High Court loses rigour. [956F G] Resolution No. 26 dated February 1, 1983, approving the scheme is given by the DCM provided that the scheme had taken all necessary safeguards and controls which would help triggering re development and rehabilitation in the congest ed areas of the central core of the capital.[956G] Appeals dismissed conveying a direction that the DDA shall grant the DCM conditional approval subject to removal of the enumerated objections raised or such of them as are valid and tenable in law after DCM is heard by the Municipal Corporation of Delhi. The matter be formalised forthwith by the DDA and other authorities connected therewith within eight weeks so that the settlement between the workers and the DCM and other matters connected do not stagnate and move to the benefit of all concerned. [960G H] 953

Appeal No. 56 of 1962. Appeal by special leave from the judgment and decree dated March 3, 4, 1958 of the Bombay High Court in Appeal No. 27 of 1957. Purshattam Tricumdas, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. H.N. Sanyal, Solicitor General, N. P. Nathwani, AtiqurRehman and K. L. Hathi, for respondents Nos. 1 3, 5, 6, 8 17, 19 and 20. The Judgment of the Court was delivered by Ayyangar, J. This appeal, by special leave, raises for con sideration a very short point regarding the proper construction of bye law 137 B of the Bombay Bullion Association Ltd., which will hereafter be referred to as the 'Association ' and in particular whether on the facts established in this case the requirements of the said bye law has been satisfied. The appellant is a member of the first respondent the Association and carries on business as a bullion merchant. By a notification dated March 14, 1949, the Government of Bombay in exercise of the powers conferred by section 6 of the Bombay Forward Contracts Control Act, 1947 (Bombay Act LXIV of 1947) sanctioned by the bye laws framed by the Association. Under the said Act the members of the Association were permitted to carry on forward dealings in bullion subject to the said bye laws. The appeal is concerned with the regularity of a purchase effected by the Association purporting to act under its bye laws, of a quantity of silver at the risk of the appellant, on the footing that he had defaulted in performing his contract as a seller on February 3, 1953 which was a settlement day. The Association made this purchase treating the appellant as a defaulter and claimed from him the difference which amounted to Rs. 1,37,880 12 0. The appellant paid this sum when demanded on the 5th February under protest but on the next day he filed the suit out of which the present appeal arises against the Association and its Directors for its refund on the ground that the purchase at his risk by the Association was invalid as contrary to the bye laws and was, therefore, not binding on him. The appellant did not dispute that he defaulted in performing his obligation to tender the bullion of which he was the forward seller on the settlement day as he was bound to do under the relevant bye laws but the point on which he attacked the purchase was that no purchase could be made unless the forward purchasers for that settlement had fulfilled the terms of their 251 obligations under the bye laws and that as they had failed to do so, the Association had no right to effect a purchase on behalf and for the benefit of such defaulting purchasers. The suit was tried before Coyajee J. on the Original Side of the Bombay High Court. The learned Judge recorded a finding that there had been no default on the part of the purchasers and he, therefore, dismissed the suit. An appeal preferred by the appellant to a Division Bench also failed and it is the correctness of this decision of the High Court that is challenged in this appeal. Though the evidence went into minute details as to the things that happened on the Vaida day February 3, 1953 and in particular whether the several parties who figured as purchasers on the Vaida day had or had not paid in their cheques into the Clearing House of the Association on February 3, 1953 as they were bound to do under the bye laws, it is not necessary for us to go into this matter because there is a concurrent finding of fact of both the Courts that each one of the cheques of the several purchasers was, paid into the Clearing House on February 3, 1953, though it is now clear from the evidence that entries in regard to some of these transactions which took place on February 3, 1953 were made by the receiving bank or by the Clearing House only on the 4th. It is on the basis of this finding which could not be and was not challenged before us that we propose to deal with the points urged before us in this appeal. There is also one other matter which is referred to in the pleadings as well as in the judgments of the High Court which also we are putting aside. This relates to a plea by the appellant that the Director , of the Association had acted mala fide in permitting certain infractions of bye laws on the 3rd February by purchasers who would otherwise be in default and treating them is if they had fulfilled their obligations. The suggestion was that some of the members of Board of Directors had, in their individual capa city, figured as purchasers at the said settlement and that it was this personal interest of theirs that led to their favouring the group of purchasers as against the sellers at this Vaida. There was nothing in the evidence in support of this plea and Coyajee, J. having negatived it, the same does not appear to have been pressed before the Division Bench. Mr. Purshotam learned Counsel for the appellant did not seek to reagitate this matter, as indeed he could not, and hence this aspect also might be excluded from consideration. This leads us to the main question which it would be apparent from the above narrative is whether those who made forward 252 purchases for this Vaida had fulfilled their obligations under the bye laws. Now, the first matter that requires to be noticed is that the settlement for the Maha Vaida was originally fixed to February 2, 1953. Bye law 32 of the Association empowers the Board to fix the days of settlement in these terms : "32. (1) The settlement days shall be fixed by the Board or the Sub Committee appointed by it keeping in mind the provisions or these Rules and bye laws." but el. (3) of the same bye law empowers the Board : "if of opinion that circumstances exist which require an alteration of days so fixed [by cl. (1)] the Board may postpone such settlement day for a period not exceeding 5 days. " It was in exercise of this power that the Vaida day was postponed from February 2, 1953 to February 3, 1953. No dispute was raised by the appellant regarding the competence of the Board to effect this change of date or to the validity of the change effected thereby. Bye law 120 makes provision for the establishment of a Clearing House for effecting a settlement on the Vaida days. This bye law reads : " 120. Clearing House : A Clearing House shall be established under the jurisdiction of the Board to act as an ordinary agent of the members for settling forward transactions effected between members in gold, silver and sovereigns by exchanging delivery orders as also for making payment of the amounts of difference through the Clearing House. " Under the powers thus conferred the Bank of Baroda which opened a branch at the premises of the Association were appointed as the Clearing House. Bye law 125 provides for the appointment of a Clearing House Committee by the Board of Directors of the Association. Bye law 127 specifies the powers and duties of the Clearing House Committee and this runs : "127. Powers and duties of the Clearing House Committee : (1) The Clearing House Committee shall settle forms of clearing sheets, delivery forms, "Kaplis" (slips) relating to payment of differences and delivery of goods and other necessary documents for being used for the work relating to the Clearing House and every member shall have to use the said forms or other forms of the same size and with 253 similar writing. The said Committee shall from time to time fix charges for the said forms. (2) It shall issue instructions with regard to the work of the Clearing House and every member shall act according to the same. (3) If any member does not act according to any such instructions or commits any error or mistake in filing in any form or other document or writes so illegibly that it cannot be deciphered or makes delay in submitting, any such form or document to the Clearing House, then in every such case, the Clearing House Committee can impose on any member a penalty not exceeding Rs. 500. Sub Committee can be appointed for attending to the work relating to this sub clause. (4) It shall fix Havala rates in respect of outstanding transactions (transactions, which are not squared up) between two members and all members shall enter Havalas in respect of such outstanding transactions (which are not squared up) at these rates and also prepare statement of differences at those rates. Delivery orders also shall be issued at these very rates. The Havala rates in respect of transactions are given to facilitate the settlement. That does not in any way reduce the liability in respect of transactions. (5) The Clearing House Committee may declare any member as a defaulter and for that purpose, it shall have power to pass such resolutions and orders as it deems proper and necessary. (6) If, in connection with any forward settlement, the Clearing House finds, it difficult to make settlement on the days fixed for settlement, then the Clearing House Committee shall have power to make a change` of 48 hours at the maximum in all or any settlement days relating to that forward settlement. " Bye law 134(1) reads "134. (1) The member who wants to have his transactions settled through the Clearing House shall have to send to the Clearing House a clearing sheet in the settled form (form No. 1) on the days fixed for that purpose (which day will hereafter be known as he Clearance Day). 254 Bye law 137 specifies the obligations of members of the Association who give delivery and it reads: "137. The member who has to give delivery shall have to submit to the clearing house as many delivery orders signed by him as there would be, upon a calculation on the basis of every delivery order being either for five bars of silver or for 1,000 tolas of gold bar, or for 1,000 sovereigns. If any member has sent delivery orders without signing he shall attend the Clearing House at 10 A.M. in the morning on the date fixed for giving delivery orders by the Clearing House and shall sign the delivery orders. If the Clearing House finds it necessary it can call for further delivery orders from any member, and the member shall have to furnish the same forthwith but if the goods are with a bank he shall have to give delivery orders on the bank directly as mentioned above. " Bye law 137 A(1) deals with theobligations of a member whose clearance sheet shows outstanding sales and it reads : "137 A(1). A member whose Clearance Sheet shows outstanding sales shall submit to the Clearing Housewith hisdelivery orders a complete list of bars(gold or silver) in his possession or in the possession of his Banker inBombay with their number and marks, to bedelivered against such delivery orders. " As stated earlier, it is now common ground that the appellant did not carry out his obligations under this bye law. Bye law 137 B whose proper construction is raised by this appeal deals with the obligations of members whose Clearance Sheet shows outstanding purchases. It reads : "137 B. A member whose Clearance Sheet shows outstanding purchases will submit to the Clearing House with his Clearance Sheet a cheque certified "good for payment" or a demand draft on a Bank or a Bank 's payslip or cash for an amount sufficient to pay for all his outstanding purchases at the rate fixed by the Association. Failing payment as aforesaid the purchases outstanding in the Clearance Sheet or a part thereof will be auctioned at the purchaser 's risk on the same day. The cheques, demand drafts etc., so received by the Clearing House will be paid into the Clearing House Account in the Bank of Baroda Ltd., Bullion Hall Subbranch, and crossed cheques payable to bearer or payslips 255 of the said Bank in favour of the sellers whose delivery orders are given by the Clearing House to the purchasers will be handed over by the Clearing House to the said purchasers. The sellers shall give delivery of the goods covered by the delivery order to the said purchasers against such cheques or payslip issued by the said bank. Refusal by a seller to give delivery of goods covered by his delivery order to the purchaser against such a cheque or payslip during the time fixed for giving delivery, will amount to failure to give delivery and consequences in Bye law 147 will ensue. " It was not contested that if by the transactions to which we shall refer presently, members whose Clearance Sheets showed outstanding purchases had fulfilled their obligations under Bye law 137 B, the Association was entitled to effect the purchases at the risk and cost of the appellant under the succeeding bye laws which confer upon the Association this power to effect purchases or sales to square the transactions of defaulting members. An analysis of the bye law 137 B would show that a member whose Clearance Sheet showed outstanding purchases had, on the Vaida day, to file his Clearance Sheet and to make a payment into the Clearing House of an amount sufficient to pay for all his outstanding purchases at the rate fixed by the Association. This payment had to be made along with the Clearance Sheets and had to be in one of four forms: (a) a cheque certified good for payment, or (b) a Demand Draft on a bank, or (c) a bank 's pay in slip, or (d) cash. The question raised in this appeal, relates to whether certain of the purchasers had made payments into the Clearing House of the amounts payable by them in any of the permitted modes. Before proceeding further we might add that the Bank of Baroda which was the Clearing House admitted that the amounts required to be paid by the several purchaser members had been received by it on the 3rd and the total amounts represented by these payments were credited to the Association. Before setting out the matters in controversy as regards the form of payment adopted by certain purchasers under bye law 137 B, it is necessary to premise the narrative by a few facts. As already stated, the Bank of Baroda Ltd. had been appointed as the Clearing House of the Association under bye law 120 in or about 1949 and had been functioning as such ever since. To facilitate payments by and between members the Bank had opened a special branch called the 'Bullion Hall Sub branch ' in the premises of the 256 Association itself. Bye law 174(3) required every member to open an account in the Bank, so that it might be convenient to pay or draw cheques for effecting clearance. All the members had, in pursuance of and in obedience to this bye law, opened such accounts. The Bank issued special pay in slips for doing its business as a Clearing House. These slips were in triple foil, all of which had to be filled in by the member making the payment. When a member made a payment into the Bullion Exchange Branch of the Bank the extreme right of the three parts which recited the payment to the credit of the Clearing House of the Association by the member named and of the amount, also specifying the particulars of the payment would be signed or initialled by the Cashier and Ledger Keeper and be retained with the Bank. The paying in slip consisting of the other two parts in which similar entries were made and bearing the signature or initials of the Bank authorities was handed over to the member making the payment. He had thereafter to present this slip to the Clearing House along with the Valan or the Clearance Sheet, and thereupon the Clearing House department would endorse receipt on the part to the extreme left which would be returned to the member the other part being retained by the Clearing House. The settlement for the Vaida on February 3, 1963 appears. to have been an exceptionally heavy one on account of the very large volume of sales and purchases for that settlement and there was a total outstanding sale of 1897 bars of silver with, of course, corresponding purchases of the same number. Sellers of 1,004 bars gave delivery orders as required by bye laws 137 and 137 A but the appellant who had an outstanding sale of 853 bars failed to submit to the Clearing House the necessary delivery orders. The purchasers of the 1,897 bars had, under the bye laws, to submit their Clearance Sheets and make payments into the Clearing House in the manner provided by bye law 137 B of a total sum of Rs. 88,31,050 by February 3, 1953. By reason of the extraordinary situation created by the heavy payments having to be made coupled with a strike of the Clerks of the members on the previous day, the Directors of the Association passed a resolution extending the time for payment and delivery of Clearance Sheets beyond the usual banking hours to 7 P.m. on the 3rd February. The point in controversy in the appeal is whether this amount had been paid into the Bank on the 3rd February to the credit of the Clearing House in the manner provided by bye law 137 B. Out of the Rs. 88,31,050, some amount was paid in cash, 257 Rs. 42,99,400 by cheques drawn by members on their respective accounts with the Bullion Hall Sub branch of the Bank of Baroda Ltd. in favour of the Association 's Clearing House account, Rs. 24,64,050 by four pay slips of other banks in favour of the Bank of Baroda Ltd., Rs. 15,30,150 by transfers by two members from their accounts with the Jhaveri Bazar branch of the Bank of Baroda Ltd., to the Bullion Hall Sub branch for payment to the Association, Rs. 4,65,000 was by a cheque drawn by a member on his account with the Fort Branch of the Bank of Baroda Ltd., in favour of the Association, Clearing House Account. Of these, the submission of the appellant was that only the cash payment was a proper one and that the rest were not made in accordance with bye law 137 B. Before dealing with it, however, it might be stated that the Bank of Baroda Ltd. Clearing House submitted a statement on February 4, 1953 stating that all the payments totalling Rs. 88,31,050 had been received by it as a Clearing House and had been credited to the Association. Now, taking first the amounts paid by cheques drawn by mem bers on their accounts in the Bullion Hall Sub branch, several points were urged in support of the contention. The first was this : On February 3, 1953 the banking hours ended at 2.30 P.m. and several of the payments into the Clearing House Account by cheques drawn on the Banking account at this branch were made after that hour. It was, therefore, contended that even if there was enough money in the accounts of the several members to meet the cheques drawn by them, still their cheques could not be treated as cash as the banking hours had passed. This was answered by the Division Bench by pointing out that there was nothing illegal in the bank functioning for the purpose, of the members of the Clearing House after 2.30 P.m. that day. There was evidence before the Court that the ledgers and other books of account in the bank were available for being looked into to ascertain whether a member 's account had sufficient funds to meet the cheques which had been drawn. There was also evidence that the state of the member 's account was ascertained before the triplicate form was accepted by the bank and the two left side foils passed on to the depositing member for being handed over to the Clearing House and, as we stated earlier, on the next day the bank submitted a statement acknowledging receipt of the amount of the several cheques and showed their amounts to the credit of the Association. In these circumstances, the learned Judges of the High Court came to the conclusion that there had been a payment as required by the bye law 137 B on February 3, 1953. L3Sup./65 258 We entirely agree with the High Court as regards the alleged illegality said to have been caused by the Bank accepting cheques after the close of the usual Banking hours. It would be noticed that the extension of the banking hours from 2.30 P.m. to 7 p.m. that day was not in contravention of any statute and whatever the position might have been, if such extension acted to the detriment of a constituent of the bank, in the case on hand it was really for the benefit of the customer. In those circumstances, there was nothing illegal and, of course, nothing improper in the banking business having continued so long as the work of the bank as a Clearing House continued. There were also other objections raised to support the argument that these payments were contrary to bye law 137 B. To appreciate them it would be necessary to state a few more facts. From the analysis that we have made of payments that were made into the Clearing House by the purchasers in satisfaction of the amounts due by them for the settlement, Rs. 42,99,400 were by way of cheques drawn on the Bullion Hall Sub branch of the bank. We have also stated that the staff of the bank to whom the cheques were presented had endorsed on the slips that there were sufficient funds in the account to enable the cheque to be cleared and that it was after this process that the pay in slips were presented to the Clearing House with the Clearance Sheets in fulfilment of their obligations under the bye law. In regard to these payments by transfer entries to the credit of the Association it was urged (1) That several of the members numbering about 17 or so, did not, in fact, have enough funds in their accounts before 7 P.m. that day to enable the cheques which they drew in favour of the Clearing House to be honoured and that in consequence notwithstanding the acceptance of the cheques by the bank, such a payment could not be deemed within bye law 137 B. It was common ground that at 2.30 P.m. on the 3rd of February the amount to the credit of several of these members was not sufficient to enable the cheques which they issued later in the day to be cleared. But before the cheques were actually presented the purchaser members paid into their accounts (a) refunds which they obtained of margin moneys which they had deposited with the Association and to which they were entitled under the bye laws and (b) other cheques in favour of the Bank of Baroda. Taking up first the margin money refunds, purchasers had, under the bye laws, to pay margin moneys on their purchases and these had to be refunded to them on fulfilment of certain conditions. 'Me amounts 259 originally paid as margin by the purchasers had been credited to the Association and when the amount had to be refunded payment orders were made out by the Association on the 3rd of February of the amounts due to be refunded and these refund orders were paid by the respective purchasers to the credit of their accounts and their accounts were so credited with the Bullion Hall Subbranch. It was not the case of the appellant that the members were not entitled to the refund granted by the Association but what was objected to was that the refunds were really not due that day and had been improperly paid over by the Association in advance of the time when it was due Bye law 33 C(2) deals with the refund of margin money and it reads: "Where the conditions described in clause (a) or (b) as the case may be, cease to exist, the Association shall return the margin amount to the members concerned on the day following the next clearance day after making the necessary adjustment. " On this the appellant 's case was that the margin money could have been returned only on the 4th and that the Association acted improperly in refunding the amounts to the purchasers on the 3rd itself to enable them to utilise that money for the purpose of making their payments towards the settlement. We do not see any sub. stance in this complaint, nor do we see any relevance of this to the point now in controversy, viz., whether there had been a compliance with bye law 137 B. As already pointed out, the Vaida was originally fixed for the 2nd of February and if that had stood the amount would have been refundable on the 3rd. It was, however, owing to a strike of the Gumashtas of the members that a situation had arisen by reason of which the Vaida had to be postponed by a day. Whether as urged by Mr. Purshottam, that upon the proper construction of bye law 33 C that when a Vaida day is shifted the day fixed for the refund of the margin money also gets shifted or whether it would be payable on the day originally fixed, would, in our opinion, make no difference to the result. The bye law imposes an obligation on the Association to refund the margin money on the day next after the Vaida. On its terms, however, if the conditions of cls. (a) & (b) cease to exist, and obviously they ceased to exist in the present case even on the 2nd, there is nothing in the bye law to preclude the Association from refunding the margin money. Again, even if the margin money were returned before such refund could be legally enforced, the propriety or impropriety of the refund would have no bearing on the only point for consideration relevant to the question whether bye law 137 B was 260 complied with or not viz., whether the accounts of the members were in credit at the time the cheques were presented. (2) The next category of objection under this head was in relation to the bank having given credit to one of the members for the amount of a cheque of Rs. 2,00,000/ which was drawn on the Bank of India, Australia and China. Now, the evidence in the case was that this constituent Khimji Poonja & Co. had to pay Rs. 4,65,000/ as a purchaser. He had a credit balance at 2.30 P.m. on the 3rd of Rs. 1,93,215/13/5. To enable him to meet the cheque for Rs. 4,65,000/ which he drew on the Bullion Hall Sub Branch he paid into his account Rs. 1,05,500/ as refund of margin money. Besides, he drew a cheque for Rs. 2,00,000/on his account with the Bank of India, Australia & China in favour of the Bank of Baroda and paid this cheque to the credit of his account with the Head Office of the Bank of Baroda. The Head Office intimated this credit to the Bullion Exchange Branch and when he presented his cheque for Rs. 4,65,000/ to the Bullion Exchange Branch the same was honoured and the amount credited to the Association. The learned Judges accepted this evidence and the explanation and held that this constituent had enough funds with the Bank to meet the cheque of Rs. 4,65,000/ which he drew. Mr. Purshottam challenged the credibility of this evidence. We do not, however, propose to go into it for the reason that if, as a matter of fact, the Bank of Baroda as a Banking Institution gave Khimji Poonja & Co. credit for Rs. 2 lakhs that was a matter between those two parties and is not a matter which bears upon the validity of the payment for Rs. 4,65,000/ which Khimji made. It is not disputed, or rather it cannot be disputed that the Head Office of the bank credited Khimji Poonja & Co. with the sum of Rs. 2,00,000/ and there is evidence as to the intimation of this credit by the Head Office. Of course, the cheque by Khimji on the Chartered Bank was not certified "good for payment" but that was not a payment under bye law 137 B. The Head Office accepted it and therefore nothing follows from their not having insisted on that cheque being certified. The fact remains that the Head Office accepted that cheque; we shall take it in anticipation of being cleared, and as a fact it was cleared the next day. With the propriety of the Head Office of the Bank crediting the constituent with the amount of that cheque before actual realisation neither the Bullion Exchange Branch nor the Association to whose account the sum of Rs. 4,65,000/ represented by the cheque drawn in their favour was credited, nor the appellant are concerned. When once the Bank credited that sum into the account there was enough 261 credit for meeting the cheque of Rs. 4,65,000/ which is the only point we are concerned with. (3) The third head of objection that was raised, and this was the one which was the subject of strenuous contest in the High Court and before us, was whether the cheques on the Bullion Exchange Sub branch which were paid in with the Clearance Sheets were "certified good for payment" within bye law 137 B. It was urged that only four modes of payment were recognised and that a cheque even on the customer 's account in the same bank was still a cheque and that unless 'It was certified good for payment it did not satisfy the requirement of a valid payment within bye law 137 B. In this connection it was stressed that having regard to the consequences flowing from a payment or non payment on the terms of the bye laws a strict and literal construction of the bye law was called for and that the Courts should so construe the bye law and hold that a literal and not merely a substantial compliance with it in the sense of the Clearing House having received payment would satisfy the rule. In connection with the submission that cheques drawn against the customer 's account in the same branch of the bank could not be "cheques certified good for payment" even though there were enough funds to meet the cheques, learned Counsel drew our attention to the fact that certification of a. cheque was a well known form of commercial procedure which bankers adopted for the purpose of clearance by which the certifying and the Clearing bank became bound to each other. Reliance was, in this connection, placed on the observations of the Privy Council in Gaden vs The Newfoundland Savings Bank(1) where it is stated : "The only effect of the certifying is to give the cheque additional currency by showing on the face that it is drawn in good faith on funds sufficient to meet its payment, and by adding to the credit of the drawer that of the bank on which it is drawn. " Reference was also made to the judgment of Lord Wright in Bank of Baroda vs Punjab National Bank(2) where the histroy of certification or marking of cheques in India is dealt with. We do not, however, derive any assistance from these decisions on the point now in controversy. The first thing to be noticed about this objection as to certification is that there is no question of certification where a cheque drawn on an account in a branch of a bank is paid into the same branch to the credit of another party who has an account in that branch. Certification is a method adopted when a (1) [18991 A.C. 281 at p. 285. (2) 71 I.A. 124. 262 bank on which a cheque is drawn verifies the customer 's account on which it is drawn and indicates on the cheque that there are enough funds in his account to meet that cheque. It is obvious that there could be no question of such a certification by a bank of a cheque ,drawn on an account in a branch when the drawer pays it to the credit of a different account in the same branch. The verification of the account of the constituent for the purpose of ascertaining whether there is enough credit to meet the cheque which precedes a certification takes place at the very moment when the cheque is cleared. There is therefore no question then of two banks a certifying bank on which the cheque is drawn and a clearing bank into which that cheque is paid. In such circumstances, we should consider that the proper view to take of the payment would be that it is really a payment in cash. The Privy Council had, in Arsene A. Larocque vs Hyacin the Beauchmin,(1) to consider whether the payment a company by receipts given by it on account of the purchase price of the property which they sold was a payment in cash. In dealing with this question Lord Macnaghten quoted with approval the following from the judgment of James L. J. in Spargo 's(2) case : "It was said by the Lord Chancellor, and we entirely concurred with him, that it could not be right to put any construction upon that section (section 25 of the Companies Act, 1867) which would lead to such an absurd and un justifiable result as this, than in exchange of cheques would not be payment in cash, or that an order upon a banker to transfer money from the account of a company would not be a payment in cash." and another passage from the judgment of Mellish, L.J. "It is a general rule of law that in every case where a transaction resolves itself into paying money by A to B and then handing it back again by B to A, if the parties meet together and agree to set one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards. " We consider these observations apposite and hold that where a payment was made by a cheque drawn on an account with the Bullion Exchange Sub branch and the amount represented by that cheque was transferred to the Clearing House Account of the Association it is virtually a payment in cash, though in form a payment by cheque. (1) (2) L.R. 8 Ch. 407. 263 The next transaction to which objection was taken was a payment into the Bullion Hall Sub branch of a sum of Rs. 4,65,000/ by one Sri Bansilal & Sons. The evidence was that the cheque was drawn not on his account on the Bullion Hall Sub branch of the Bank of Baroda but with the branch of the Bank at the Fort, Bombay. The evidence which the Court accepted was that on the presentation of the cheque the staff ascertained that the constituent had enough funds in the bank for the cheque to be cleared and accepted it and credited the same to the account of the Bullion Exchange Association. The objection raised to the receipt of this payment was also founded on the cheque not being certified as good for payment. It will be noticed that the only point of difference between this cheque and the cheques which were drawn on accounts of members with the Bullion Hall branch which we have dealt with just now is, that the cheque for Rs. 4,65,000/was not drawn on the drawer 's account with the Bullion Hall Subbranch but on an account in the same bank at the Fort branch. For the purpose of considering this point it is not necessary to enter on any examination of the question as to what extent the two branches of the same bank are separate entities. There is no doubt that a customer cannot claim to draw cheques except on the branch where his moneys are deposited and on the account in respect of which the cheque is issued. But that is not what is in controversy in the present case. Here a cheque drawn on the Fort Branch is paid into the Bullion Hall Sub branch to the credit of the Association. The Bullion Hall Sub branch of the bank accepts that cheque and credits it to the Association after ascertaining that the drawer of the cheque has enough funds at the Fort branch for meeting that cheque. The only question is whether the payment could be treated as by a cheque which is certified as good for payment. We consider that what we have stated earlier as to the position in regard to a cheque drawn on an account in the same branch would also apply to the present case and that a certificate of the banker that is referred to in the bye law is a certificate of a bank different from that into which the cheque is being paid. Even if there be any doubt in this matter we are satisfied that when once the staff at the Bullion Hall Sub branch ascertained that the cheque was backed by sufficient funds to the credit of the customer in the account on which it is drawn, it satisfies the requirements of a cheque certified as good for payment within bye law 137 B. The learned Judges of the High Court, therefore,, rightly held that this payment was not outside the payments permitted by the said bye law. The last of the cases concerns a payment by one Jethalal Sangji Shah of a cheque for Rs. 1.16,250/ . The cheque was 264 made in favour of the Bank of India Ltd. not certified good for payment and was paid into the Bullion Hall Sub branch. The Clearing House received this cheque from Jethalal Sanagi Shah after obtaining a declaration from him that he had enough credit in his account with the Bank of India for meeting that cheque. It was stated that the Directors of the Association were approached by the Bank as to whether this cheque could be received in payment and that it was on their advice that a declaration in the form specified was taken from the member and it was only thereafter that the payment was accepted as conforming to bye law 137 B. Mr. Purshottam submitted that this payment could certainly not be within bye law 137 B. and we consider that learned Counsel is right. This, however, does not help him because it concerns the price for 25 bars and, having regard to the quantity of silver with which we are concerned, Mr. Purshottam could not but concede that even if the payment by this constituent was irregular it would not affect the validity of the purchase at the risk of the appellant. We thus reach the conclusion that except the last payment which was not quite regular but whose irregularity is not material, all the other payments were substantially, if not literally, in accordance with the requirements of bye law 137 B and in consequence the purchase made by the Directors at the risk of the appellant was legal and justified under the bye laws. Before concluding it is necessary to advert to the fact that both before the learned trial Judge as well as before the Division Bench a detailed analysis was made of the several payments made by about 17 members of the Association with a view to establish that those payments were not, even if they were made on the 3rd. in accordance with bye law 137 B. The learned Judges considered the several objections which were formulated to the validity of these payments and after discussing some of the details of the individual cases which were placed before the Court, recorded their finding that the payments satisfied the requirements of the relevant bye law. In view of the arguments addressed to us we have not examined in detail each one of the objections but have dealt only with those specifically urged before us and the tenability in general of the principles on which these objections were based. The appeal accordingly fails and is dismissed with costs. Appeal dismissed.

The appellant company dismissed some workmen after a domestic enquiry holding them guilty on a charge of 'go slow ' action. The respondents raised an industrial dispute. The Industrial Tribunal found that the dismissal of the respondents could not be sustained as there was no specific mention of 'go slow ' in the charge. Further it found that there was denial of natural justice at the enquiry as the workmen were not allowed to be represented by a person of their choice. The Tribunal set aside the dismissal of the respondents and ordered their reinstatement. The company appealed to the Supreme Court by special leave. HELD : (i) The charge specified cls. 10(vii) and (xvi) of the Operators Standing Orders. These clauses deal with insubordination and, inter alia, with 'go slow '. The workmen had been expressly warned by notice that they were "going slow" and in their reply to the charge they denied that they were going slow. The Tribunal was thus wrong in holding that the workmen were not charged with 'go slow ' action and could not be found guilty of that charge. [143 B C, G H] (ii) 'Mere was no denial of natural justice because the workmen asked to be represented by a member of a union which was not recognised The Standing Orders clearly provided that only a representative of a union which is registered under the Trade Union Act and recognised by the company can assist. 'Mere was no right to representation as such unless the company by its Standing Order recognised such a right. [144 F G, H] Kalindi & Ors. vs Tata Locomotives & Engineering Co. Ltd.[1960]3 S.C.R. 407 and Brook Bond India (P) Ltd. vs Subba Raman , relied on.

N: Criminal Appeal No. 745 of 1983 From the Judgment and Order dated the 20th, 21st, 22nd, 23rd September 1983 of the Bombay High Court in Criminal Appeal No. 265 of 1983 with confirmation case No. 3/83. Ram Jethmalani, M.S. Ganesh, F. N. Ranka and Ms. Rani Jethmalani for the Appellant. K.G. Bhagat, Addl. Solicitor General, M.N. Shroff and U.A. Jadhavrao for the Respondent. The following Judgments were delivered FAZAL ALI, J. This is rather an unfortunate case where a marriage arranged and brought about through the intervention of common friends of the families of the bride and bridegroom though made a good start but ran into rough weather soon thereafter. The bride, Manju, entertained high hopes and aspirations and was not only hoping but was anxiously looking forward to a life full of mirth and merriment, mutual love and devotion between the two spouses. She appears to be an extremely emotional and sensitive girl at the very behest cherished ideal dreams to be achieved after her marriage, which was solemnised on February 11, 1982 between her and the appellant, Sharad Birdhichand Sarda. Soon after the marriage, Manju left for her new marital home and started residing with the appellant in Takshila apartments at Pune. Unfortunately, however, to her utter dismay and disappointment she found that the treatment of her husband and his parents towards her was cruel and harsh and her cherished dreams seem to have been shattered to pieces. Despite this shocking state of affairs she did not give in and kept hoping against hope and being of a very noble and magnanimous nature she was always willing to forgive and forget. As days passed by, despite her most laudable attitude she found that "things were not what they seem" and to quote her own words "she was treated in her husbands house as a labourer or as an unpaid maid servant". She was made to do all sorts of odd jobs and despite her protests to her husband nothing seems to have happened. Even so, Manju had such a soft and gentle frame of mind as never to complain to her parents in law, not even to her husband except sometimes. On finding things unbearable, she did protest, and ex 99 pressed her feelings in clearest possible terms, in a fit of utter desperation and frustration, that he hated her. Not only this, when she narrated her woeful tale to her sister Anju in the letters written to her (which would be dealt with in a later part of the judgment), she took the abundant care and caution of requesting Anju not to reveal her sad plight to her parents lest they may get extremely upset, worried and distressed. Ultimately, things came to such a pass that Manju was utterly disgusted and disheartened and she thought that a point of no return had reached. At last, on the fateful morning of June 12,1982, i.e., nearly four months after her marriage, she was found dead in her bed. As to the cause of death, there appears to be a very serious divergence between the prosecution version and the defence case. The positive case of the prosecution was that as the appellant was not at all interested in her and had illicit intimacy with another girl, Ujvala, he practically discarded his wife and when he found things to be unbearable he murdered her between the night of June 11 and 12, 1982, and made a futile attempt to cremate the dead body. Ultimately, the matter was reported to the police. On the other hand, the plea of the defence was that while there was a strong possibility of Manju having been ill treated and uncared for by her husband or her in laws, being a highly sensitive and impressionate woman she committed suicide out of sheer depression and frustration arising from an emotional upsurge. This is the dominant issue which falls for decision by this Court. Both the High Court and the trial court rejected the theory of suicide and found that Manju was murdered by her husband by administering her a strong dose of potassium cyanide and relied on the Medical evidence as also that of the chemical examiner to show that it was a case of pure and simple homicide rather than that of suicide as alleged by the defence. The High Court while confirming the judgment of the trial court affirmed the death sentence and hence this appeal by special leave. Before discussing the facts of the case, it may be mentioned that although the High Court and the trial court have gone into meticulous and minutest matters pertaining to the circumstances leading to the alleged murder of Manju, yet after going through the 100 judgments we feel that the facts of the case lie within a very narrow compass. The story of this unfortunate girl starts on 11.2.1982 when her marriage was solemnised with the appellant preceded by a formal betrothal ceremony on 2.8.8. after the marriage, Manju, for the first time, went to her parents ' house on 22.2.82 for a very short period and returned to Pune on 26.2.82. It is the prosecution case that on 17.3.82 the appellant had called Manju at Pearl Hotel where he introduced her to Ujvala and told her that she must act according to the dictates and orders of Ujvala if she wanted to lead a comfortable life with her husband. In other words, the suggestion was that the appellant made it clear to his wife that Ujvala was the real mistress of the house and Manju was there only to obey her orders. After this incident, Manju went to her parents ' house on 2.4.82 and returned to Pune on 12.4.82. This was her second visit. The third and perhaps the last visit of Manju to her parents ' house was on 25.5.82. from where she returned to Pune on 3.6.82, never to return again. The reason for her return to Pune was that her father in law insisted that she should return to Pune because the betrothal ceremony of Shobha (sister of the appellant) was going to be held on 13.6.82. The last step in this unfortunate drama was that Manju, accompanied by Anuradha (wife of A 2) and her children, returned to the flat on 11.6.82 near about 11.00 p.m. Her husband was not in the apartment at that time but it is alleged by the prosecution that he returned soon after and administered potassium cyanide to Manju. Thereafter, the appellant went to his brother, Rameshwar who was also living in the same flat and brought Dr. Lodha (PW 24) who was living at a distance of 11/2 Kms from Takshila Apartments. At the suggestion of Dr. Lodha Dr. Gandhi (PW 25) was also called both and of them found that Manju was dead and her death was an unnatural one and advised the body to be sent for postmortem in order to determine the cause of death. Ultimately, Mohan Asava (PW 30) was approached on telephone and was informed that Manju had died at 5.30 a.m. Subsequently, the usual investigation and the postmortem followed which are not very germane for our purpose at present and would be considered at the appropriate stage. The plea of the appellant was that Manju was not administered potassium cyanide by him but she appears to have committed 101 suicide out of sheer frustration. In order to prove his bona fide the accused relied on the circumstances that as soon as he came to know about the death of his wife he called two Doctors (PWs 24 & 25) and when they declared that Manju had died an unnatural death, as the cause of death was not known, and therefore the body had to be sent for postmortem, he immediately took steps to inform the police. He flatly denied the allegation of the prosecution that there was any attempt on his part to persuade Mohan Asava (PW 30) to allow the body of the deceased to be cremated. We might state that the High Court has mentioned as many as 17 circumstances in order to prove that the circumstantial evidence produced by the prosecution was complete and conclusive, Some of 13 these circumstances overlap, some are irrelevant and some cannot be taken into consideration because they were not put to the appellant in his statement under section 313 of the Code of Criminal Procedure in order to explain the effect of the Code of Criminal Procedure in order to explain the effect of the same as we shall presently show. The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of this Court as also of the High Courts, The locus classicus of the decision of this Court is the one rendered in the case of Hanumant vs The State of Madhya Pradesh where Mahajan, J. clearly expounded the various concomitants of the proof of a case based purely on circumstantial evidence, and pointed out thus: "The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. . it must be such as to show that within all human probability the act must have been done by the accused. " This decision was followed and endorsed by this Court in the case of Dharambir Singh vs The State of Punjab. We shall however discuss Hanumant 's case fully in a later part of our judgment. Coming now to the question of interpretation of sec. 32(1) of The Evidence Act, this Court in the case of Ratan Gond vs State of Bihar S.K. Das, J. made the following observations: 102 "The only relevant clause of section 32 which may be said to have any bearing is cl.(1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister. " In the 'Law of Evidence ' by Woodroffe & Ameer Ali (Vol. II) the authors have collected all the cases at one place and indicated their conclusions thus: "To sum up, the test of the relevancy of a statement under Section 32(1), is not what the final finding in the case is but whether the final finding in the case is but whether the cause of the death of the person making the statement comes into question in the case. The expression 'any of the Circumstances of the transaction which resulted in his death '; is wider in scope than the expression 'the cause of his death '; in other words, Clause (1) of Section 32 refers to two kinds of statements: (1) statement made by a person as to the cause of his death, and (2) the statement made by a person as to any of the circumstances of the transaction which resulted in his death. The words, 'resulted in his death ' do not mean 'caused his death ', Thus it is well settled that declarations are admissible only in so far as they point directly to the fact constituting the res gestae of the homicide; that is to say, to the act of killing and to the circumstances immediately attendant thereon, like threats and difficulties acts, declarations and incidents, which constitute or accompany and explain the fact or transaction in issue. They are admissible for or against either party, as forming parts of the res gestae." (P. 952) It would appear that the solid foundation and the pivotal pillar on which rests the edifice of the prosecution may be indicated as follows: 103 (1) Written dying declaration by the deceased in her letters, two of which were addressed to her sister Anju and one her friend Vahini, (2) The oral statements made by the deceased to her father (PW 2), mother (PW 20), Sister (PW 6) and her friend (PW 3) and also to PWs 4 and 5 showing her state of mind shortly before her death and the complaints which she made regarding the ill treatment by her husband, (3) evidence showing that the appellant was last seen with the deceased in the room until the matter was reported to the police. (4) the unnatural and incriminating conduct of the appellant, (5) the medical evidence taken alongwith the Report of the chemical examiner which demonstrably proves that it was a case of homicide, completely rules out the theory of suicide as alleged by the appellant. Mr. Jethmalani, learned counsel for the appellant, has vehemently argued that there was a very strong possibility of the deceased having committed suicide due to the circumstances mentioned in her own letters. He has also questioned the legal admissibility of the statements contained in the written and oral dying declarations. He has submitted that the so called dying declarations are admissible neither under section 32 nor under s.8 of the Evidence Act it was submitted by the appellant that the present case is not at all covered by cl.(1) of section 32 of the Evidence Acts. The leading decision on this question, which has been endorsed by this Court, is the case of Pakala Narayana Swami vs Emperor where Lord Atkin has laid down the following tests: "It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the "circumstances" can only include the acts done when and 104 where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae". Circumstances must have some proximate relation to the actual occurrence. It will be observed that "the circumstances are of the transaction which resulted in the death of the declarant." These principles were followed and fully endorsed by a decision of this Court in Shiv Kumar & Ors vs The State of Uttar Pradesh where the following observations were made: "It is clear that if the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed, A necessary condition of admissibility under the section is that the circumstance must have some proximate relation to the actual occurrence The phrase "circumstances of the transaction" is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae" (See Pakala Narayana Swami vs The King Emperor AIR 1939 PC 47). The aforesaid principles have been followed by a long catena of authorities of almost all the courts which have been noticed in this case. To mention only a few important once, in Manoher Lal 105 & ors. vs The State of Punjab, the Division Bench of the Punjab & Haryana High Court observed thus: The torture administered sometimes manifests itself in various forms. To begin with, it might be mental torture and then it may assume the form of physical torture. The physical harm done to the victim might be increased from stage to stage to have the desired effect. The fatal assault might be made after a considerable interval of time, but if the circumstances of the torture appearing in the writings of the deceased come into existence after the initiation of the torture the same would be held to be relevant as laid down in Section 32(1) of the Evidence Act. " We fully agree with the above observations made by the learned Judges. In Protima Dutta & Anr. vs The State while relying on Hanumant 's case (supra) the Calcutta High Court has clearly pointed out the nature and limits of the doctrine of proximity and has observed that in some cases where there is a sustained cruelty, the proximity may extend even to a period of three years. In this connection, the High Court observed thus: "The 'transaction ' in this case is systematic ill treatment for years since the marriage of Sumana with incitement to end her life. Circumstances of the transaction include evidence of cruelty which produces a state of mind favourable to suicide. Although that would not by itself be sufficient unless there was evidence of incitement to end her life it would be relevant as evidence. This observation taken as a whole would, in my view, imply that the time factor is not always a criterion in determining whether the piece of evidence is properly included within "circumstances of transaction. " "In that case the allegation was that there was sustained cruelty extending over a period of three years interspersed with exhortation to the victim to end her life." His Lordship further observed and held that the evidence of cruelty was one continuous chain, several links of which were touched up by the exhortations to die. "Thus evidence 106 of cruelty, ill treatment and exhortation to end her life adduced in the case must be held admissible, together with the statement of Nilima (who committed suicide) in that regard which related to the circumstances terminating in suicide." Similarly, in Onkar vs State of Madhya Pradesh while following the decision of the Privy Council in Pakala Narayana Swami 's case (supra), the Madhya Pradesh High Court has explained the nature of the circumstances contemplated by section 32 of the Evidence Act thus: "The circumstances must have some proximate relation to the Actual occurrence and they can only include the acts done when and where the death was caused. Thus a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime." In Allijan Munshi vs State, the Bombay High Court has taken a similar view. In Chinnavalayan vs State of Mad ras two eminent Judges of the Madras High Court while dealing with the connotation of the word 'circumstances ' observed thus: "The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. This is because the natural meaning of the words, according to their Lordships, do not convey any of the limitations such as that the statement must be made after the transaction has taken place, that the 107 person making it must be at any rate near death, that the circumstances can only include acts done when and where the death was caused. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence. " In Gokul Chandra Chatterjee vs The State the Calcutta High Court has somewhat diluted the real concept of proximity and observed thus: 'In the present case, it cannot be said that statements in the letters have no relation to the cause of death. What drove her to kill herself was undoubtedly her unhappy state of mind, but the statements in my view have not that proximate relation to the actual occurrence as to make them admissible under section 32(1), Evidence Act. They cannot be said to be circumstances of the transaction which resulted in death. " We, however, do not approve of the observations made by the High Court in view of the clear decision of this Court and that of the privy Council. With due respect, the High Court has not properly interpreted the tenor and the spirit of the ratio laid down by the Privy Council. We are, therefore, of the opinion that this case does not lay down the correct law on the subject. Before closing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of cl.(1) of 32, viz. "the circumstances of the transaction which resulted in his death, in cases in which the cause of that person 's death comes into question" is not be found in the English law. This distinction has been clearly pointed out in the case of Rajindera Kumar vs The State where the following observations were made: "Clause (1) of section 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead, are themselves rele 108 vant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which the cause of that person 's death comes into question. It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death. In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death. And in the case of State vs Kanchan Singh & Anr. it was observed thus: "The law in India does not make the admissibility of a dying declaration dependent upon the person 's having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under section 32. Evidence Act. In these circumstances, therefore, it is futile to refer to English cases on the subject. Thus, from a review of the authorities mentioned above and the clear language of s.32(1) of the Evidence Act, the following propositions emerge: (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and 109 character of our people, has thought it necessary to widen the sphere of s.32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3 4 months the statement may be admissible under s.32. (3) The second part of cl.1 of s.32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross examined by the accused, would be valueless because the place of cross examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that s.32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell tale story, the said statement would clearly fall within the four corners of s.32 and, therefore, admissible. The distance of 110 time alone in such cases would not make the statement irrelevant. This now brings us to a close consideration of the contents of the letters (Exhs. 30, 32 and 33) written by Manju to her sister and friend. We propose to examine the contents of the letters for four purposes: 1) in order to find out the state of mind and psychological attitude of Manju, 2) the nature of Manju 's attitude towards her husband and in laws, 3) the amount of tension and frustration which seems to be clearly expressed in the letters and 4) to determine Manju 's personal traits and psychological approach to life to determine if she was ever capable of or prone to committing suicide. We start with the letter dated 8.5.82 (exhibit 30) which was addressed to her sister Anju and is printed at page 191 of Part I of the printed Paperbook. The learned counsel for the appellant in order to make our task easy has supplied the English translation as also the Roman script of the original letter. On a comparison of the two versions, we are of the opinion that by and large the English translation printed in the Paperbook is a true and faithful rendering of the contents of the original letter. It is not necessary for us to extract the entire letter but we propose to extract only the relevant portions which seek to explain and illustrate the four purposes mentioned above. "All read the letter with curiosity, or it may go to anybody 's hand. I do not want to take any risk. So I have taken up today for writing, the second letter to you." The Roman scripy runs thus: (P.191) "Khat to sabhi utsukta se padte hain. Kahin kisi ke hath pad saktahai. Aisi risk leni nahin aai. Isliye maine tumhe aaj doosra khat likhneko liya. " (P.17) An analysis of the above clearly shows that Manju was a highly secretive woman and wanted to keep her personal matters or 111 secrets to herself except giving a rough idea or a passing glimpse of her feelings only to those who were very close to her as friends or near relations. The extract shows that perhaps in a spell of heavy emotions she had written a very long letter to her sister whom she regarded as her best friend but on second thought she tore it off lest it may fall in anybody 's hands and she was not prepared to take such a risk. This mentality and noble nature would be of great assistance to us in assessing the probative value of the statements made by her to her parents, sister and friend during her last visit to Beed. The second paragraph, which is extracted below, reflects her state of mind and the tension and torture which she was undergoing: "Now in this letter, when (Out of) the things coming to my mind which cannot be written, I do not understand what is to be written, The State of mind now is very much the same. Enough. You understand (me). I am undergoing a very difficult test. I am unable to achieve it. Till I could control (myself), well and good. When it becomes impossible, some other way will have to be evolved. Let us see what happens. All right. " (P.191) She has hinted that hinted that she was passing through difficult times but was trying to control herself as much as she could. She has further indicated that if things did not improve then she may have to evolve some other method. The exact words used in the Roman script runs thus: "Jab tak sambhal sakti hoon theek hai jab assambhab ho jayega to phir rasta nikalna padega, dekhenge kya kya hota hai," The words "some other way will have to be evolved" clearly gives a clue to her psychotic state of mind and seem to suggest that the other method to get rid of all her troubles was to commit suicide. It is pertinent to note that in the first two paragraphs of her letter extracted above there is no indication nor any hint about the conduct of her husband. In the third para of her letter she states her feelings thus: "I thought much that since the house of my husband 's parents is at Pune, I would do this and that or the people 112 from the house of my husband 's parents are free. However, I have gradually come to know that in that house, the worth of a daughter in law is no more than that of a laborer." (P.191) The relevant portion in the Roman script reads thus: "Is ghar mein bahu ki keemat majdoor se jyada nahin hai." (P. 18) At the end or the third paragraph she repeats her sad plight thus: "My state here however is like an unclaimed person. Let it be gone. I do not like to weep (over it). When we will meet, we will talk all the things. " In the middle of the 4th paragraph she comes out with an emotional outburst by indicating that all her hopes had been shattered and because of being neglected by her husband her health was adversely affected. In the Roman script she used the following words: "Sachmuch kya kya sapne rahte hain kuarepanmein, magar toote huye dekhkar dilpar kya gujarti hai. Vaise tu maine kuch bhi sapne nahin dekhe the, bas ek hi sapna tha ki mera pati mujhse bahut pyar kare, magar abhi wo bhi na pakar dilki halat per kaboo nahin pa sak rahi. Tabiyat par uska asar dikh raha hai." (P. 19 20) In the latter part of the 8th paragraph while giving vent to her feelings she states thus: "Now Manju is moving, it is necessary to tell that she is alive. You don 't tell anybody about this letter. I felt like telling all this to Bhausab. What, however, is the use of making him sorry. One should test one 's fate, whatever may be the result. I want to tell you all. But I cannot tell. " The words used by her show her affectionate and secretive nature and the precaution taken by her not to tell any thing to her father, who is addressed as 'Bhausab '. The Roman script of the relevant portion runs thus: 113 "Dil tu karta tha Bai Bhau Sahab ko sab bataon, magar unko dukh dekar kya phaida. Apne apne naseeb dekhenge, natija kya nikalta hai. Mujhe tumbein sab kuch batana hai magar bata nahin sakti. " (P.22) These extracts throw a flood of light on the nature, character, mental attitude, suffering and shock of the deceased. One thing which may be conspicuously noticed is that she was prepared to take all the blame on her rather than incriminate her husband or her inlaws. The other portions of the letter (Ex.30) are not at all germane for the purpose of this case. Summarising the main contents of the letter, the following conclusions or inferences follow: (a) Manju was a highly emotional and sensitive woman, (b) She got the shock of her life when due to ill treatment by her husband and in laws she found that all her dreams had been shattered to pieces after marriage leaving her a dejected, depressed and disappointed woman, (c) she had been constantly ill treated by her in laws and her position in the house was nothing but that of an unpaid maid servant or a labourer, (d) she wanted to keep all her worries and troubles to herself and on no account was she prepared to disclose them to her parents or even to her sister, lest they also get depressed and distressed. (e) no serious allegation of cruelty had been made against the husband personally by her and she thought that she herself should suffer out of sheer frustration. Now we shall examine Ex.32 which is a letter dated 8.6.82 written by Manju to her sister Anju. This was perhaps her last letter to Anju and is very important and relevant for decision of the case. The letter begins with the words "I am happy here. " In the second paragraph she expresses her feelings as follows: "Shobhabai 's 'Sadi ' programme is fixed on 13th I do not know why there is such a dirty atmosphere in the house ? It is felt every moment that something will happen. 114 Everybody is in tension. No work has been started in the house. Let it go. I am out of mind. Still I am used not to pay need to it. Ala what about your law." (P.195) So far as the first part is concerned, the 'dirty atmosphere ' about which she speaks is totally unrelated to anything done by the husband or of any cruel treatment by him; it merely refers to the tension prevailing in the family as the 'Sadi ' (Kohl) was fixed on 13.6.82. Her anger is not so much towards her husband or herself as for the manner in which things were being done. She complained that no work had been started and being the eldest daughter in law of the family she felt it her duty to see that all arrangements were complete. It was conceded by the Additional Solicitor General that this portion of the letter does not refer to any ill treatment by the husband or his parents but relates only to the defective and unsatisfactory arrangements for such an important function. The relevant portion of the 3rd paragraph is also more or less innocuous but in between the lines it contains a tale of woe, a spirit of desperation and frustration and a wave of pessimism. the actual vernacular words are "Mera to aane ka kya hota hai dekna hai Buajike yahan se khat aur aaya to shahid chance mil sakta hai. Magar meri mangal ke dulhan ke roop mein dekhne ki bahut ichha hai. Dekhenge. " She was naturally apprehending some thing and was not very hopeful of going to her father 's place. This being her last letter, and that too a short one, it gives a clear inkling of the manner of how her mind was working. She did not lay any blame on her husband or anybody else but still she was afraid that something was going to happen and that she may not be able to go to her father and see the marriage of her sister in law for which preparations were being made. In our opinion, these words are extremely prophetic and seem to indicate that by that time she had almost made up her mind to end her life instead of carrying on her miserable existence. As brevity is the soul of wit, she directly hinted that she may not be able to meet her father or any body naturally because when a life comes to an end there can be no such question. 32, though a short letter, depicts her real feeling and perhaps a tentative decision which she may have already taken but did not want to disclose for obvious reasons. 115 Then we come to Exh.33 which is a letter dated 23.4.82 written by the deceased to her close friend, Vahini and which shows her exact feelings, changing, mood and emotions. This is the only letter where she had made clear complaints against her husband and the relevant portions may be extracted thus: "Really, Vahini, I remember you very much. Even if I am little uneasy, I feel that you should have been near with me. All persons here are very good. Everybody is loving. Still I feel lonely. One reason is that, in the house there are many persons and they are elder to me and such I do not dare to do any work independently. Every time some fear is in mind which leads to confusion. God knows when I can come there ? The point on which we had discussion is as it was. Vahini. I swear you if you talk to anyone. I am much in pains. But what else can I do ? No other go than that, and the same mistake is done again and again by me. It is that I go ahead and talk for ten times, then I become angry if he does not speak. Vahini, there is nothing in my hands except to weep profusely. At least till now this man has no time to mind his wife, let it be, but Vahini, what shall I do?" (P.196) "Who knows what hardships be fall on me, so long I am alive. Why the god has become (unkind) towards me." (P. 197) "Since yesterday I have made up my mind not to speak a word even, till he speaks (to me). Let me see to what extent I control my feelings. Vahini, you also pray to god for me whether a girl like me should be put to such a difficult test. Vahini, I am so much afraid of him that the romantic enchantment during first 10 15 days after marriage has become like a dream." "I cannot dare to ask him whether his clothes be taken for wash. At present my status is only that of a maid servant without pay as of right. 116 Why so much indifference towards me only ? Vahini, I, feel to weep in your arms. Vahini come to Pune early. On getting up every morning I feel he will speak today but every day I am hoping against hope. Vahini, what will happen ? Now there is no ray of hope. Day before yesterday I became excited and uttered in rage. "You hate me, was I unable to get food in my parent 's house ? He was irritated due to word 'hate '. He said. if you talk more like this, I will be very bad man. If this goes on, I will not come to sleep. That means not permitted (to cry) also. How he says to me, are you tired of me so early ? What shall I say to such a man. Once I feel that he does not count me. On second thought, I feel he cares me much. But due to moody nature, it will take time to pacify the same. On the day on which self pride is lessened, no other person will be more fortunate than me But till that day it is not certain that I will be alive." (P. 197) In the second paragraph she starts by giving an indication that she was feeling uneasy and would have very much liked to have Vahini with her. In the third paragraph she clearly states that all persons in her father in laws ' place were very good and loving but due to a number of persons in the house she did not get a chance to work independently. The last line "every time some fear is in mind which leads to confusion" is the starting point of the first symptom of her invisible fear which she was unable to locate. The fourth paragraph is rather important which shows that whatever her feelings may have been she sought an oath from Vahini not to talk to anyone regarding the matters which she proposed to write in the said letter. She says that she was much in pains and hints that she weeps profusely and the reason given by her for this is that she went on committing mistakes and talked to her husband many times but his silence was extremely painful which made her angry. In the last portion, for the first time, she makes a direct complaint against her husband to the effect that he had no time to look after her (Manju). In the same paragraph she describes her hardships and complains 117 why God was unkind to her. She further expresses her sentiments that the romantic enchantment which she experienced during the first few days of her marriage had completely disappeared and looks like a lost dream or a "Paradise lost". Then she describes her plight as being a maid servant without pay. She again complains of indifference towards her. Ultimately, she hopes against hope that some day he will speak to her and discuss the problems but there is no response. Later, she refers to a particular incident and goes to the extent of telling him that he hates her. This seems to have irritated the husband who resented this remark very much. Again in the same breath towards the end of the paragraph, while she says that her husband does not care for her yet she at once changes her mind and says that he cares for her much but due to his moody nature it will take time to pacify him. Her feelings again take a sudden turn when she says that when her husband 's self pride is lessened none would be more fortunate than her. The next line is rather important because she hints that till the said heyday comes perhaps she might not be alive. A careful perusal of this letter reveals the following features (1) after going to her marital home she felt completely lost and took even minor things to her heart and on the slightest provocation she became extremely sentimental and sensitive. (2) She exhibited mixed feelings of optimism and pessimism at the same time. (3) it can easily be inferred that she did not have any serious complaint against her husband but she became sad and morose because she was not getting the proper attention which she thought she would get. (4) There is no indication that she expected any danger from her husband nor is there anything to show that things had come to such a pass that a catastrophe may have resulted. There may be certain concealed and hidden hints which she was not prepared to reveal in writing : what they were is not clear. (5) A close reading and analysis of the letter clearly shows at least two things 118 (a) that she felt extremely depressed, (b) that there was a clear tendency resulting from her psychotic nature to end her life or commit suicide. This possibility is spelt out from the various letters which we have extracted. Indeed, if this was not so how could it be possible that while not complaining against her husband she gives a hint not only to Vahini but also to Anju that she might not live. She mentions of no such threat having been given to her by husband at any time or anywhere. (6) The contents of the letter lead us to the irresistible conclusion that Manju felt herself lonely and desolate and was treated as nothing but a chattel or a necessary evil ever since she entered her marital home. Thus, from the recitals in the letters we can safely hold that there was a clear possibility and a tendency on her part to commit suicide due to desperation and frustration. She seems to be tired of her married life, but she still hoped against hope that things might improve. At any rate, the fact that she may have committed suicide cannot be safely excluded or eliminated. It may be that her husband may have murdered her but when two views are reasonably possible the benefit must go to the accused. In order to buttress our opinion, we would like to cite some passages of an eminent psychiatrist, Robert J. Kastenbaum where in his book 'Death, Society and Human Experience ' he analyses the causes, the circumstances, the moods and emotions which may drive a person to commit suicide. The learned author has written that a person who is psychotic in nature and suffers from depression and frustration is more prone to commit suicide than any other person. In support of our view, we extract certain passages from his book : "The fact is that some people who commit suicide can be classified as psychotic or severely disturbed. (P.242) If we are concerned with the probability of suicide in very large populations, then mental and emotional disorder is a relevant variable to consider. (P.243) 119 And it is only through a gross distortion of the actual circumstances that one could claim all suicides are enacted in a spell of madness. (P.243) "Seen in these terms, suicide is simply one of the ways in which a relatively weak member of society loses out in the jungle like struggle. (P.243) The individual does not destroy himself in hope of thereby achieving a noble postmortem reputation or a place among the eternally blessed. Instead he wishes to subtract himself from a life whose quality seems a worse evil than death. (P.245) The newly awakened spirit of hope and progress soon became shadowed by a sense of disappointment and resignation that, it sometimes seemed, only death could swallow. (P.245) Revenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress." (P.251) "People who attempt suicide for reasons other than revenge may also act on the assumption that, in a sense, they will survive the death to benefit by its effect. xx xx xx The victim of suicide may also be the victim of self expectations that have not been fulfilled. The sense of disappointment and frustration may have much in common with that experienced by the person who seeks revenge though suicide However, for some people a critical moment arrives when the discrepancy is experienced as too glaring and painful to be tolerated. If something has to go it may be the person himself, not the perhaps excessively high standards by which the judgment has been made Warren Breed and his colleagues found that a sense of 120 failure is prominent among many people who take their own lives." (P.252) The above observations are fully applicable to the case of Manju. She solemnly believed that her holy union with her husband would bring health and happiness to her but unfortunately it seems to have ended in a melancholy marriage which in view of the circumstances detailed above, left her so lonely and created so much of emotional disorder resulting from frustration and pessimism that she was forced to end her life. There can be no doubt that Manju was not only a sensitive and sentimental woman but was extremely impressionate and the letters show that a constant conflict between her mind and body was going on and unfortunately the circumstances which came into existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideal fails, the failure drives them to end their life, for they feel that no charm is left in their life. Mary K. Hinchliffe, Douglas Hooper and F. John Roberts in their book 'The Melancholy Marriage ' observe that "Studies of attempted suicides cases have also revealed the high incidence of marital problems which lie behind the act. In our own study of 100 consecutive cases (Roberts and Hooper 1969), we found that most of them could be understood if the patients interactions with others in their environment were considered." (P.5) Such persons possess a peculiar psychology which instils extreme love and devotion but when they are faced with disappointment or find their environment so unhealthy of unhappy, they seem to loose all the charms of life. The authors while describing these sentiments observe thus : "Hopelessness ', 'despair ', 'lousy, and 'miserable ' draw attention to the relationship of the depressed person to his environment. The articulate depressed person will often also struggle to put into words the fact that not only does there appear to be no way forward and thus no point to 121 life but that the world actually looks different." (P.7) Coleridge in `Ode to Dejection ' in his usual ironical manner has very beautifully explained the sentiments of such persons thus : "I see them all so excellently fair I see, not feel, how beautiful they are ;" At another place the author (Hinchliffe, Hooper & John) come to the final conclusion that ruptured personal relationship play a major part in the clinical picture and in this connection observed thus : "Initially we applied these ideas to study of cases of attempted suicide (Roberts and Hooper 1969) and although we did not assume that they were all necessarily depressed, we looked for distal and proximal causes for their behaviour and found that ruptured personal relationships played a major part in the clinical picture." (P.50) The observations of the authors aptly and directly apply to the nature, mood and the circumstances of the unfortunate life of Manju which came to an end within four months of marriage. We have pointed out these circumstances because the High Court has laid very great stress on the fact that the evidence led by the prosecution wholly and completely excludes the possibility of suicides and the death of Manju was nothing but a dastardly murder. We shall now deal with the next limb of the oral dying declaration said to have been made by the deceased to her parents and friends. Some of the statements which have a causal connection with the death of Manju or the circumstances leading to her death are undoubtedly admissible under s.32 of the Evidence Act as held by us but other statements which do not bear any proximity with the death or if at all very remotely and indirectly connected with the death would not be admissible. Unfortunately, however, the two kinds of statements are so inextricably mixed up that it would 122 take a great effort in locating the part which is admissible and the one which is not. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. This now takes us to a consideration of the evidence of the witnesses concerned which read together with the letters form a composite chain of evidence regarding the causes or the circumstance relating to the death of the deceased. According to the prosecution, the last visit of Manju to Beed was on 25.5.82 where she stayed till 3rd of June 1982 when she was brought back by the father of the appellant. In other words, the narration of the troubles and tribulations of Manju was made only during her last visit and not earlier. These statements are alleged to have been made to Rameshwar Chitlange (PW 2), Manju 's father, Rekha (PW 3), who was Manju 's friend and referred to as `Vahini ' in the letter Ex.33, Anju (PW 6), Manju 's sister to whom letters (Exhs. 30 and 32) were written, and PW 20, Bai, the mother of Manju. Meena Mahajan (PW 5) was also examined but we are not in a position to rely on the evidence of this witness for two reasons (1) she does not figure anywhere in any of the letters written by Manju, and (2) nothing was told to her by Manju directly but she was merely informed regarding the incidents mentioned by PW 2. This sort of indirect evidence is not worthy of any credence. 123 We would first deal with the evidence of PW 2, Rameshwar Chitlange (Manju 's father). We shall give a summary of the relevant part of his evidence because the other parts relate to how the marriage was performed and the spouses had gone for honeymoon which are not germane for our purpose. The witness states that when Manju came to Beed with her maternal uncle he found her somewhat uneasy and on making enquiries whether she was happy at her husband 's house she told him that she was not very happy with her husband since she noticed that her husband was not very much pleased with her and in fact hated her. These facts are the result of the usual domestic quarrels between a husband and a wife, hence this statement cannot be said to be so directly or proximately related to the death of Manju so as to be admissible under s.32 of the Evidence Act. It appears from his evidence that even after hearing the narration from his daughter he advised her to get herself adjusted to the situation and to the atmosphere of her new marital home. Apart from being inadmissible this does not appear to be of any assistance to the prosecution in proving the case of murder alleged against the appellant. The witness goes on to state that as the grandfather of the accused had died he visited Pune, accompanied by his wife and Manju. Since this was more or less a formal visit for expressing his condolences to the bereaved family, he left Manju at the house of the accused. The only part of his evidence on which reliance was placed by the prosecution is that he had noticed Manju very much disturbed and uneasy and requested Birdichand (father of the accused) to allow him to take Manju to the house of Dhanraj, which he did. On reaching the house of Dhanraj, the witness states that Manju completely broke down and started weeping and fell in the grip of her mother. This state of Manju, which the witness saw with his own eyes, would undoubtedly be primary evidence of what he saw and felt though not in any way connected with section 32 of the Evidence Act. But from this circumstance alone it cannot be safely inferred that Manju apprehended any serious danger to her life from her husband. The witness further states that he informed Birdichand about the grievances made to him by Manju. The appellant, Sharad, was sent for and he quietly listened to his father but the witness felt that whatever Birdichand may have told to his son that does not appear to have made any serious impact on him (appellant) and he left the 124 room. This is purely an opinion evidence and therefore not admissible. Even so, the accused perhaps did not think it necessary to enter into arguments with his father in law in the presence of his father and that is why he may have kept quiet. From this no inference can be drawn that he was in any way inimically disposed towards Manju or was animated by a desire to take her life. The witness further stated that he found that Manju was weeping every now and then during the night at Dhanraj 's place. Later, in the morning the witness took Manju back to her in laws house but his grievance was that Sharad did not care to meet or talk to them. These are however small circumstances which are incidents of any married life and from this no adverse inference can be drawn against the appellant. Another complaint made in the statement was that when he made a voluntary offer to solve the difficulties of Sharad, the appellant curtly told him that he did not want to get his difficulties solved by other persons and at this attitude of Sharad the witness was naturally very much disappointed. This conduct of the accused also is not of such an importance as to lead to any adverse inference. Some persons who have a keen sense of pride and self respect do not like anyone else not even their father or father in law to interfere in their personal matters. Perhaps this may be the reason for the somewhat cool and curt attitude of Sharad but that proves nothing. In fact, experience shows that where elders try to intermeddle in the affairs of a husband and his wife, this creates a serious obstruction in the relations of the married couple. Nothing therefore, turns upon this statement of PW 2. Again, the witness repeats that when Manju came down to see him off he noticed her weeping all the time. To cut a long story short, the witness came back to Beed and sent his son Pradeep to bring Manju from Pune to Beed. On reaching there he was informed that Manju and Sharad had gone on a holiday trip to Mysore, Triupati, etc. After the return of Pradeep to Beed, Dhanraj informed the witness that Sharad and Manju had returned to Pune and therefore, he sent his son, Deepak to Pune to bring back Manju. When Manju arrived at Beed, the witness found her totally disturbed and frightened. This statement would be admissible as primary evidence. What probative value should be attached to this small matter is a different issue. 125 Thereafter, the witness was told the incidents by his wife (PW 20) which had been narrated to her by Manju but that is of no value so far as this witness is concerned as the main evidence would be that of PW 20. However, in order to save the marriage from a a total break down the witness was extremely worried and therefore, he called one Hira Sarda, a close acquaintance of the family of accused, who told him (witness) that he was going to Hyderabad and after 4th 5th June some solution would be found out. At the same time, he advised the witness not to make any haste in sending back Manju to Pune. On the 2nd June 1982, Birdichand arrived at Beed and requested the witness to send Manju to Pune because the marriage of Birdichand 's daughter was fixed for 30th June 1982 and the Kohl (betrothal) ceremony was to be held on the 13th of June so that Manju may be present at the ceremony and look after the arrangements. The witness says that after hearing this he apprised Birdichand that Manju was extremely frightened and that she was not ready to go back to her husband 's house nor was he (witness) willing to send her back so soon. He suggested to Birdichand that as the marriage of his nephew was to be celebrated at Beed on 25th June, Sharad would come to attend the marriage and at that time he can take Manju with him. Birdichand, however, persuaded the witness to send back Manju and assured him that no harm of any kind would come to her and he also promised that Manju would be sent back to Beed, The most important statement in the evidence of this witness may be extracted thus : "I was having this talk with Birdichand on the first floor of my house. Manju heard this from the staircase, called me out in the ground portion of the house and told me that she was not in a position to go to the house of the accused. Since she was in a state of fear or extreme fear in her mind and she also told me that she was not prepared to go to the house of the accused. ** ** ** Therefore, after the meals I sent Manju with Birdichand. Birdichand, Manju and Kavita then left Beed by about 12.30 p.m. by bus on 3rd of June, 82. At that 126 time Manju was constantly weeping right from inside my house till the bus left. She was also in a state of extreme fear." (P. 197) The witness has said many times in his statement that Manju was always weeping and crying and the final crisis came when on hearing the talks between him and Birdichand she called him from the staircase and told him that she was not prepared to go to her husband 's house as she was in a state of extreme fear. It is difficult to believe this part of the evidence of the witness for two reasons (1) When the talks were going on between two elders would Manju be sitting near the staircase to listen their talks and call her father and give vent to her feelings and her decision not to go back to Pune at any cost. This conduct appears to be directly opposed not only to the tenor and spirit of the letters (Exhs. 30, 32 and 33) which we have discussed but also against her mental attitude and noble nature. (2) As indicated by us while discussing the letters could a woman who was so affectionate and reserved in nature and who would not like the contents of her letters to Anju and Vahini to be disclosed to her parents lest they feel worried, disturbed and distressed suddenly turn turtle, forgetting her sentiments not to worry them and come out in the open to declare before all by weeping and crying that she was in a state of extreme fear, seem to us to be inherently improbable. Once a mature woman develops a particular nature or habit or a special bent of mind she is not likely to forgo her entire nature in this case, her affection and love for her parents and the feeling of not doing anything which may cause distress or worry to them, and start telling her woeful story to everyone whom she met. Manju must have known fully that her husband 's sister 's 127 betrothal ceremony was to be held on 13th June and if her father in law was making request after request to take her to Pune to attend the said ceremony, and had given all sorts of assurances that no harm would come to her, would she still call her father and express her state of fear and go on repeating what she had already said. This seems to us to be an afterthought or an embellishment introduced in the evidence of the witness so as to add credence to the prosecution story and provide an imaginary motive for the murder of the deceased. Indeed, if she was bent on resisting all attempts of her father in law to take her to Pune she would not have gone at all. On the other hand, her subsequent conduct of ultimately going to Pune and making arrangements for the Kohl ceremony belies the story put forward by the witness. It is extremely difficult for a person to change a particular bent of mind or a trait of human nature unless there are substantial and compelling circumstances to do so. In the instant case, we find no such compelling circumstance even taking the statement of the witness at its face value. To take the other side of the picture, the witness says that when he reached Pune on 12.6.82 and visited the place where Manju had died, he found Sharad sleeping or lying on the cot and on seeing him he immediately started crying vigorously and making a show of the grief and shock they had received. The exact statement of the witness may be extracted thus : "I could notice that Sharad who was sleeping or lying on the cot in the said room on seeing me entering the room immediately started crying vigorously giving jerks to his body and making show of the grief and the shock he had received. Ultimately I asked him as to what had happened to Manju when he told me that since 11th it was the day of his marriage with Manju, he and Manju were in joyest mood. According to him they went to bed by about 12 midnight and he had a sexual act with Manju in such a manner which they never had enjoyed before. Ultimately according to him when they completely felt tired and exhausted both of them fell asleep. According to him by about 5.30 a.m. when he got up and after visiting the urinal, when returned to the room he found that Manju had not got up as usual since according to him, she used to wake up at the same time he used to wake up and so he 128 went near Manju and called her out when he found her dead. " It is rather strange that while the witness took whatever his daughter told him at its face value without making any further enquiry, he immediately jumped to the conclusion that the grief and tears in the eyes of his son in law were fake and that he was merely shedding crocodile tears. There is nothing on the record nor in the evidence to show any circumstance which may have led the witness to arrive at this conclusion. On the other hand, if the conduct of the appellant, as described by the witness, is seen from a dispassionate angle, it was quite spontaneous and natural because by the time the witness reached Pune the postmortem had been done and the death of Manju had come to light long before his arrival. There was no reason for the witness to have presumed at that time that Sharad must have committed the murder of the deceased. There were no materials or data before him which could have led him to this inference. This clearly shows one important fact, viz., that the witness was extremely prejudiced against Sharad and if one sees anything even the truth with a pale glass everything would appear to him to be pale. The second part of the statement made by the witness regarding having sexual intercourse near about midnight seems to us to be inherently improbable. However, educated or advanced one may be, it is against our precious cultural heritage for a person to utter such things in a most frank and rudimentary fashion to his father in law. We are clearly of the opinion that the story of having a sexual act, etc., was a pure figment of the imagination of the witness and this, therefore, goes a long way off to detract from the truth of the testimony of this witness. Furthermore, at page 175 the witness admits that during the life time of Manju, Anju and Rekha told him about the receipt of the letters from Manju but they never referred to the nature or the contents of the letters. This is a correct statement because both Anju and Vahini had been requested by Manju not to disclose to her parents the state of affairs or the tortures which she was suffering and perhaps they kept the sanctity of oath given to them by the deceased. This is an additional circumstance to show that even when Manju visited Beed for the last time she might tell something to her own sister Anju or to Vahini but she would never dare 129 to disclose all the details and put all the cards on the table before her parents a step which she deliberately desisted from coming into existence. We can understand the evidence of the witness that Manju was worried, distressed and depressed. Sometimes out of natural love and affection parents make a mountain of a mole hill and this is what seems to have happened in this case. Great reliance was placed by the Additional Solicitor General, on behalf of the respondent, on the relevance of the statements of PWs 2, 3, 6, and 20. He attempted to use their statements for twin purposes firstly, as primary evidence of what the witnesses saw with their own eyes and felt the mental agony and the distress through which the deceased was passing. Secondly, he relied on the statements made by the deceased (Manju) to these witnesses about the treatment meted out to her by her husband during her stay at Pune and furnishes a clear motive for the accused to murder her. As regards the first circumstance, there can be no doubt that the said evidence of the witnesses would undoubtedly be admissible as revealing the state of mind of the deceased. This would be primary evidence in the case and, therefore, there cannot be any doubt about the relevancy of the statement of the witnesses in regard to this aspect of the matter. As to what probative value we should attach to such statements would depend on a proper application of the context and evidence of each of the witnesses, As regards the second aspect which is in respect of what the deceased told the witnesses it would only be admissible under section 32 of the Evidence Act as relating to the circumstances that led to the death of the deceased. In view of the law discussed above and the propositions and the conclusions we have reached, there cannot be any doubt that these statements would fall in the second part of s.32 of the Evidence Act relating directly to the transaction resulting in the death of Manju, and would be admissible. Before, however, examining this aspect of the question we might at the outset state that the character, conduct and the temperament of Manju, as disclosed or evinced by the admitted letters (Exhs. 30,32 and 33), which demonstrate that it is most unlikely, if not impossible, for Manju to have related in detail the facts which the aforesaid witnesses deposed. If this conclusion is correct, then no reliance can be placed on this part of the statement of the aforesaid witnesses. We now proceed to discuss the evidence of PWs 3,4, 5, 6 and 130 20. As we have discussed the evidence of PW 2, father of Manju, it will be more appropriate to discuss now the evidence of PW 20 (Manju 's mother) from whom most of the matters spoken to by PW 2 were derived. Her evidence appears at page 305 of part I of the Paper Book. It is not necessary for us to go into those details which have already been deposed to by PW 2. The most relevant part of her evidence is about the visit of Manju to Beed on 2.4.82. She states that during this visit she found Manju cheerful and happy and she did not complain of anything during her stay for 8 10 days. In answer to a question whether she enquired from Manju or had any talk with her during that period she stated Manju told her that her husband was not taking any interest in her and used to leave the house early in the morning and return late at night on the excuse that he was busy with his factory work. It may be stated here that the accused had a chemical factory where he used to work from morning till late at night. The witness further deposed that Manju informed her that there was no charm left for her at the house of her husband. These facts however run counter to her first statement where she stated that Manju was quite happy and cheerful as expected of a newly married girl. Even so, whatever Manju had said does not appear to be of any consequence because she (the witness) herself admits that she did not take it seriously and told Manju that since she had entered a new family it might take some time for her to acclimatise herself with the new surroundings. She also warned Manju against attaching much importance to such matters. Thereafter she goes on to state that near about the 11th or 12th of April 1982 she (PW 20) alongwith her husband left for Pune to offer condolences on the death of the grand father of the appellant. She then proceeds to state that during their second visit to Pune on the 11th or 12th of May 1982 she stayed with her brother, Dhanraj and that while she was there Manju hugged at her neck and having lost her control, started weeping profusely. She further states that Manju requested her to take her to Beed as it was not possible for her to stay in her marital house where she was not only bored but was extremely afraid and scared. On the next day she (PW 20) met the mother of the appellant and told her plainly that she found Manju extremely perturbed, uneasy and scared and that she was experiencing tremendous pressure and restrictions from her husband. But the mother of the appellant convinced her that there was nothing to worry about, 131 and everything will be alright. The witness then narrated the fact to her husband and requested him to take Manju with them to Beed. PW 2 then sought the permission of Birdichand to take Manju to. Beed but he told him that as some guests were to visit him, he (PW 2) can send somebody after 4 5 days to take Manju to Beed. It may be mentioned here that the details about the sufferings and the mental condition of Manju was not mentioned by this witness even to her husband (PW 2) as he does not say anything about this matter. Further, her statement is frightfully vague. As already indicated that the letters (exhibit 30, 32, 33) clearly show that Manju never wanted to worry or bother her parents about her disturbed condition, it appears to be most unlikely that on the occasion of the death of her grandfather in law she would choose that opportunity to narrate her tale of woe to her mother. This appears to us to be a clear embellishment introduced by the prosecution to give a sentimental colour to the evidence of this witness. Ultimately, on May 25, 1982 Deepak brought Manju to Beed and this time she was accompanied by her cousin, Kavita. Here again, she states that on her arrival she found Manju extremely disturbed and under tension of fear and Manju was prepared to make a clean breast of all her troubles. However, as Kavita was there and did not give any opportunity to Manju to meet her mother alone, she (Kavita) was sent out on some pretext or the other. Thereafter, Manju told her mother that she was receiving a very shabby treatment from her husband and while narrating her miserable plight she told her about two important incidents which had greatly upset her (1) that she happened to come across a love letter written by PW 37, Ujwala Kothari to her husband which showed that the appellant was carrying on illicit relations with PW 37, (2) that on one occasion the appellant told Manju that he was tired of his life and did not want to live any more and, therefore wanted to commit suicide. Despite Manju 's enquiries as to why he wanted to commit suicide, he did not give any reason. She then informed her mother when this talk was going on, she (Manju) herself volunteered to commit suicide. Thereafter, Sharad put forth a proposal under which both of them were to commit suicide and they decided to write notes showing that they were committing suicide. On hearing this plan from Sharad, Manju told him that she was not inclined to commit suicide as she had not lost all hope of life and that she had expressed her desire to commit suicide only because he had said that he would do so. PW 20 would have 132 us believe that while in one breath she agreed to the suicide pact yet the next moment she made a complete volte face. This is hard to believe having regard to the nature of the temperament of Manju. The two statements said have been made by Manju to her mother appear to be contradictory and irreconcilable and smack of concoction. According to Manju, Sharad then prepared two notes one addressed to his father and another to his father in law and asked Manju to do the same but she refused to do anything of the sort. The witness admitted that she was not told as to what had happened to the notes written by the appellant. All this story of a suicidal pact seems to us nothing but a fairy tale. There is no mention nor even a hint in the letters (Exhs. 30, 32, 33) written by Manju about the aforesaid suicidal pact and the story narrated by the witness before the trial court, nor was the note produced in the court. This appears to us to be a make believe story and was introduced to castigate the appellant for his shabby treatment towards Manju. Another intrinsic circumstance to show the untruth of this statement is that although PW 2 was apprised of these facts yet he never mentioned them to Birdichand particularly when he was insisting that Manju should be sent back to Pune for attending the betrothal ceremony of his daughter Shobha. Indeed, if this fact, which is of very great importance so far as the lives of both the husband and the wife are concerned, would have been there, the first thing which PW 2 would have done is to tell Birdihand that matters had reached such a stage as to leave no doubt that her daughter was in an instant fear of death and it was impossible for him to allow his daughter to go to Pune where Sharad was bent on forcing her to commit suicide or even murder her, more particularly because PW 20 admits in her evidence that as all the things she had learnt from Manju were serious, she had informed her husband about the same who agreed with her. Apart from this grave incident, the witness deposed to another equally important matter, viz., that on the Shila Septami day, the appellant rang up his mother to send Manju alongwith Shobha to a hotel (Pearl Hotel), as has been deposed to by other witnesses) because he wanted to give a party to his friends. As Shoba was not present in the house, Manju 's mother in law sent her alone, in 133 a rickshaw to the hotel. On reaching the hotel she did not find any other person except a girl who was introduced by her husband as Ujavla Kothari. The most critical part of the incident is that the appellant is alleged to have informed Manju that she should take lessons from Ujvala as to how she should behave with him and also told her that Ujvala knew everything about him and he was completely in her hands. Subsequently the appellant went away and Ujvala told her that the appellant was a short tempered man and she should talk to him only if and when he wanted to talk to her. She (Ujvala) also told Manju that the appellant was completely under her command and she was getting every bit of information about the incidents happening between the husband and the wife. Finally, she was apprised of the fact by Ujvala that she and Sharad were in love with each other. Manju is said to have retorted and protested to Ujvala by saying that she was not prepared to take any lessons from her regarding her behaviour towards her husband as she (Manju) was his wedded wife while Ujvala was only a friend. Manju also told her mother that these facts were narrated by her to the appellant and accused No. 2. As a result of this incident, Manju became a little erratic which attracted double cruelty towards her by her husband and made her extremely scared of her life and in view of this development she requested her mother not to send her back to the house of the accused. One point of importance which might be noticed here and which shows that whatever be the relations with her husband and Ujvala, the picture presented by the witness is not totally correct because if such a point of no return had already been reached, there was absolutely no question of Birdichand and sending for the appellant and arranging a trip to Ooty, Mysore and other place nor would have Manju agreed to go to these places. The witness further stated that as soon as Manju came to know that Birdichand had come to take her away she was shocked and continuously kept saying that she was extremely afraid of going to her husband 's house and that she should not be sent back. The behavioral attitude of Manju depicted by the witness seems to us to be absolutely contradictory to and not at all in consonance with her temperament, frame of mind, psychological approach to things and innate habits. That is why no reference had been made even directly or indirectly in any of the letters written by 134 Manju, and she had expressly requested both Anju and Vahini not to disclose anything to her parents lest they may get worried and. distressed on her account. In other words, Manju was a woman who despite her troubles and tribulations, sufferings and travails, anxiety and anguish would never have thought of narrating her woeful story to her parents and thereby give an unexpected shock to them. This feeling is mentioned in the clearest possible terms in the letters (Exhs. 30, 32, 33) which we have already discussed. There is no reference at all in any of the letters regarding suicidal pact or the illicit relationship of her husband with Ujvala. Another important fact which the High Court has missed is that even according to the statement of this witness, the appellant had asked his mother to send Shobha along with Manju to the hotel and at that time he could not have been aware that Shobha would not be available. Indeed, if he had an evil intention of insulting or injuring the feelings of Manju by keeping Ujvala there he would never have asked his mother to send Shobha also because then the matter was likely to be made public. This is another inherent improbability which makes the whole story difficult to believe. Despite these serious developments both PW 2 and 20 tried to convince Manju to accept the assurances given by Birdichand that no harm would come to her and if anything might happen they will take proper care. We find if impossible to believe that the parents who had so much love and affection for their daughter would, after knowing the circumstances, still try to take the side of Birdichand and persuade her daughter to go to Pune. Rameshwar (PW 2) should have told Birdichand point blank that he would not send Manju in view of the serious incidents that had happened, viz., the suicidal pact, the cruel treatment of the appellant towards Manju, the constant fear of death which Manju was apprehending, the illicit relationship between the appellant and Ujvala, and the strong resistance of his daughter who was not prepared to go Pune at any cost and was weeping and wailing all the time. On the other hand, knowingly and deliberately they seem to have thrown their beloved daughter into a well of death. The fact that Manju 's parents tried to console her and believed the assurance of Birdichand knowing full well the history of the case shows that any statement made by Manju to her parents was not of such great consequence as to harden their attitude. This is yet another intrinsic circumstance Manju to which negatives the story of suicidal pact and the invitation to 135 come to the Pearl Hotel and the manner in which she was insulted in the presence of Ujvala. There is no doubt that relations between the appellant and Manju were extremely strained, may be due to his friendship with Ujvala, she may not have felt happy in her marital home as she has clearly expressed in her letters but she did not disclose anything of such great consequence which would have shocked the parents and led them to resist her going to Pune at any cost. This makes the version given by PWs 2 and 20 unworthy of credence. We now proceed to take up the evidence of PW 6, Anju, the sister of Manju. The statement of this witness is more or less a carbon copy of the evidence of PW 20 which has been discussed above and, therefore, it is not necessary to consider her evidence in all its details. So far as the first visit is concerned, she fully supports her mother that Manju was very happy as was expected of a newly married girl. When Manju came to Beed around 2nd April 1982 she stayed there for 8 10 days and during that period the witness noticed that she was somewhat dissatisfied and complained that her husband used to return late at night. She also complained against the callous attitude of the other members of her husband 's family. She also introduced the story of Ujvala Kothari and corroborated what PW 20 had said which we have discussed above. She also refers to the said suicidal pact and then to the fact that Birdichand had come to take away Manju to Pune so that she may be able to attend the betrothal ceremony of Shobha. Then she deposes to an incident which appears to be wholly improbable. According to her, on the 3rd of June, 1982, PW 2 invited his two friends, Raju and Rath, for lunch at which Birdichandi was also present, and told them that Manju was not prepared to go to Pune as she was afraid to go there but Birdichand, alongwith his two friends, assured him that nothing would happen. We do not think that in the course of things P 2 would be so foolish as to let the secret matters of the house known to others than the parties concerned. Thereafter the witness proves the letters (Exhs. 30 and 32). She stated one important statement to the effect that on some occasions Manju had a talk with her mother in her presence. Although Manju had requested Anju not to disclose anything to her parents yet everything was made known to them, During cross examination the witness was asked how as it that Manju was narrating these talks when the witness had been asked not to disclose the 136 same to her parents, which she explained away by saying that she did not ask Manju why she was disclosing these things to her mother. No satisfactory answer to this question seems to have been given by her. At another place, the witness states thus : "I did not tell all these informations I received from Manju to any body. Nor anybody enquired from me till my statement was recorded by the Police." Her evidence, therefore, taken as a whole is subject to the same infirmity as that of PW 20 and must suffer the same fate. PW 3, Rekha (who was addressed as `Vahini ' in Maju 's letter (exhibit 33), states that on the first occasion when Manju came home she was quite happy but during her second visit to Beed in the month of April, 1982 she did not find her so and Manju complained that her husband was avoiding her to have a talk with her on one excuse or another. Manju also informed the witness that the appellant had a girl friend by name Ujvala and the witness says that she tried to console Manju by saying that since her husband was a Chemical Engineer he may have lot of friends. While referring to Exh. 33 (letter written to her by Manju) she stated that the only complaint made in that letter was that her husband was not talking to her properly. She then deposed to an incident which happened when on her way to Bombay when the witness stayed at Pune for some time. She states that she had a talk with Manju for about half an hour when she narrated the story of the suicidal pact. She also stated that she was extremely afraid of the situation and almost broke down in tears and wept. The most important fact which may be noted in her evidence is a clear pointer to the frame of mind and the psychotic nature of Manju. At page 212 of Part I of the Paperbook while narrating the relationship of her husband with Ujvala she says that the appellant lost his temper and thereupon she spoke the following words to him : ,`I am not going to spare this, I will not allow this, his bad relations even though a blot may come to our family and I have decided likewise. " These significant and pregnant words clearly show that Manju was so much bored and disgusted with her life that she entertained a spirit of revenge and told the witness that she was not going to 137 tolerate this even though a blot may come to the family and that she had decided likewise. This statement undoubtedly contains a clear hint that she had almost made up her mind to end her life, come what may and thereby put to trouble her husband and his family members as being suspect after her death. This appears to be a culmination of a feeling which she had expressed in one of her letters to Anju in the following words: "Till I could control (myself), well and good. When it becomes impossible, some other way will have to be evolved. Let us see what happens. All right. " Similarly, in her letter (exhibit 33) to this witness she gives a concealed hint "But till that day it is not certain that I will be alive." Thus the feelings of death and despair which she orally expressed to the witness at Pune seems to have been fulfilled when on the morning of 12th June 1982 she was found dead. The evidence of PW 4, Hiralal Ramlal Sarda, is not that important. He merely states that in the last week of May 1982, PW 2 had called him and told him that Manju was being ill treated by her husband and therefore she was not prepared to go to her marital home. PW 2 also informed him about the suicidal pact affair. As the witness was in a hurry to go to Hyderabad he counselled PW 2 not to take any final decision in a hurry and that Manju should not be sent to Pune with Birdichand until his return when a decision may be taken. On return from Hyderabed he learnt that Birdichand had already taken Manju to Pune and thereafter he left for Pune. Indeed, if the matter was so grave and serious that a person like PW 4, who was a relation of the appellant rather than that of PW 2, had advised him not to make haste and take a final decision but wait until his return yet PW 2 seems to have spurned his advice and sent Manju to Pune. This shows that the matter was not really of such great importance or urgency as to take the drastic step of making a blunt refusal to Birdihchand about Manju 's not going to Pune. This also shows that the story of suicidal pact and other things had been introduced in order to give a colour or orientation to the prosecution story. Another fact to which this witness deposes in the narration by the appellant about his having sexual act with his wife. We have 138 already disbelieved this story as being hopelessly improbable and against the cultural heritage of our country or of our nature and habits. This is the only purpose for which this witness was examined and his evidence does not advance the matter any further. PW 5, Meena Mahajan, has also been examined to boost up the story narrated by PW 2 and other witnesses. She was not at all connected with the family of PW 2 but is alleged to be a friend of Manju and she says that she found Manju completely disheartened and morose and she started weeping and crying while narrating her said story. The witness goes on to state that Manju was so much terrified of the appellant that she was afraid of her life at his hands. No. witness has gone to the extent of saying that there was any immediate danger to Manju 's life nor did Manju say so to PWs 2, 6 and 20. This witness appears to us to be more loyal than the king. Even assuming that Manju was a friend of PW 6 but she never wrote to her any letter indicating anything of the sort. For these reasons we are not satisfied that this witness is worthy of credence. A close and careful scrutiny of the evidence of the aforesaid witnesses clearly and conspicuously reveals a story which is quite, different from the one spelt out from the letters (Exhs. 30, 32 and 33). In fact, the letters have a different tale to tell particularly in respect of the following matters: (1) There is absolutely no reference to suicidal pact or the circumstances leading to the same, (2) there is no reference even to Ujvala and her illicit relations with the appellant, (3) there is no mention of the fact that the deceased was not at all willing to go to Pune and that she was sent by force, (4) the complaints made in the letters are confined to ill treatment, loneliness, neglect and anger of the husband but no apprehension has been expressed in any of the letters that the deceased expected imminent danger to her life from her husband. (5) In fact, in the letters she had asked her sister and friend not to disclose her sad plight to her parents but 139 while narrating the facts to her parents she herself violated the said emotional promise which appears to us to be too good to be true and an after thought added to strengthen the prosecution case. (6) If there is anything inherent in the letters it is that because of her miserable existence and gross ill treatment by her husband, Manju might have herself decided to end her life rather than bother her parents. We are therefore unable to agree with the High Court and the trial court that the witnesses discussed above are totally dependable so as to exclude the possibility of suicide and that the only irresistible inference that can be drawn from their evidence is that it was the appellant who had murdered the deceased. Putting all these pieces together a general picture of the whole episode that emerges is that there is a reasonable possibility of Manju having made up her mind to end her life, either due to frustration or desperation or to take a revenge on her husband for shattering her dream and ill treating her day to day. Apart from the spirit of revenge which may have been working in the mind of Manju, it seems to us that what may have happened is that the sum total and the cumulative effect of the circumstances may have instilled in her an aggressive impulse endangered by frustration of which there is ample evidence both in her letters and her subsequent conduct. In Encyclopedia of Crime and Justice (Vol. 4) by Sanford H. Kadish the author mentions thus : "Other psychologically oriented theories ave viewed suicide as a means of handling aggressive impulses engendered by frustration." Another inference that follows from the evidence of the witness discussed is that the constant fact of wailing and weeping is one of the important symptoms of an intention to commit suicide as mentioned by George W. Brown and Tirril Harris in their book "Social Origins of Depression" thus: "1. Symptom data Depressed mood 140 1. Crying 2. feeling miserable/looking miserable, unable to smile or laugh 3. feelings of hopelessness about the future 4. suicidal thoughts 5. suicidal attempts Fears/anxiety/worry 15. psychosomatic accompaniments 16. tenseness/anxiety 17. specific worry 18. panic attacks 19. phobias Thinking 20. feelings of self depreciation/nihilistic delusions 21. delusions or ideas of reference 22. delusions of persecution/jealousy 23. delusions of grandeur 24. delusions of control/influence 25. other delusions e. g. hypochondriacal worry 26. auditory hallucinations 27. visual hallucinations. " Most of these symptoms appear to have been proved as existing in Manju both from her letters (Exhs. 30, 32 and 33) and from the evidence discussed. We might hasten to observe here that in cases of women of a sensitive and sentimental nature it has usually been observed that if they are tired of their life due to the action of their kith and kin, they become so desperate that they develop a spirit of revenge and try to destroy those who had made their lives worthless and under this strong spell of revenge sometimes they can go to the extreme limit of committing suicide with a feeling that the subject who is the root cause of their malady is also destroyed. This is what may have happened in this case. Having found her dreams shattered to pieces Manju tried first to do her best for a compromise but the constant ill treatment and callous attitude of her husband may have driven 141 her to take revenge by killing herself so that she brings ruination and destruction to the family which was responsible for bringing about her death. We might extract what Robert J. Kastenbaum in his book 'Death, Society, and Human Experience ' has to say: "Revenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress." After a careful consideration and discussion of the evidence we reach the following conclusions on point No. 1: 1) that soon after the marriage the relations between Manju and her husband became extremely strained and went to the extent that no point of return had been almost reached, 2) that it has been proved to some extent that the appellant had some sort of intimacy with Ujvala which embittered the relationship between Manju and him, 3) That the story given out by PW 2 and supported by PW 20 that when they reached Pune after the death of Manju they found appellant 's weeping and wailing out of grief as this was merely a pretext for shedding of crocodile tears, cannot be believed, 4) that the story of suicidal pact and the allegation that appellant 's illicit relations with Ujvala developed to such an extreme that he was so much infatuated with Ujvala as to form the bedrock of the motive of the murder of Manju, has not been clearly proved, 5) the statement of PW 2 that the appellant had told him that during the night on 11th June 1982 he had sexual act with the deceased is too good to be true and is not believable as it is inherently improbable, 6) that despite the evidence of PWs 2, 3, 6 and 20 if has not been proved to our satisfaction that the matter had assumed such extreme proportions that Manju refused to go to Pune with her father in law (Birdichand) at any cost and yet she was driven by use of compulsion and persuasion to accompany him, 142 7) that the combined reading and effect of the letters (Exhs. 30, 32 and 33) and the evidence of PWs 2, 3, 4, 6 and 20 clearly reveal that the signs and symptoms resulting from the dirty atmosphere and the hostile surroundings in which Manju was placed is a pointer to the fact that there was a reasonable possibility of her having committed suicide and the prosecution has not been able to exclude or eliminate this possibility beyond reasonable doubt. We must hasten to add that we do not suggest that this was not a case of murder at all but would only go to the extent of holding that at least the possibility of suicide as alleged by the defence may be there and cannot be said to be illusory. 8) That a good part of the evidence discussed above, is undoubtedly admissible as held by us but its probative value seems to be precious little in view of the several improbabilities pointed out by us while discussing the evidence. We might mention here that we had to reappreciate the evidence of the witnesses and the circumstances taking into account the psychological aspect of suicide as found in the psychotic nature and character of Manju because these are important facts which the High Court completely overlocked. It seems to us that the High Court while appreciating the evidence was greatly influenced by the fact that the evidence furnished by the contents of the letters were not admissible in evidence which, as we have shown, is a wrong view of law, We now come to the second limb perhaps one of the most important limbs of the prosecution case viz., the circumstance that the appellant was last seen with the deceased before her death. Apparently, if proved, this appears to be a conclusive evidence against the appellant but here also the High Court has completely ignored certain essential details which cast considerable doubt on the evidence led by the prosecution on this point. The question of the appellant having been last seen with the deceased may be divided into three different stages: 1) The arrival of Anuradha and her children alongwith Manju at Takshila apartments, followed by the arrival of 143 the appellant and his entry into his bedroom where Anuradha was talking to Manju, 2) the calling of PW 29 by A 2 followed by the appellant and his brother 's going out on a scooter to get Dr. Lodha and thereafter Dr. Gandhi. 3) Sending for Mohan Asava (PW 30) and the conversation between the appellant, Birdichand and others as a result of which the matter was reported to the police. Although the aforesaid three stages of this circumstance cannot technically be called to mean that the accused was last seen with the deceased but the three parts combined with the first circumstance might constitute a motive for the murder attributed to the appellant. From a perusal of the judgment of the High Court on these points, it appears that the High Court has made a computerise and mathematical approach to the problem in fixing the exact time of the various events which cannot be correct as would appear from the evidence of the witnesses, including Dr Banerjee (PW 33) . The evidence of PW 7, the motor rickshaw driver shows that on the night of the 11th of June he had brought the deceased alongwith Anuradha and others and dropped them near the Takshila apartments at about 11.00 p.m. The witness was cross examined on several points but we shall accept finding of the High Court on the fact that on the 11th of June 1982 the witness had dropped the persons, mentioned above, at about 11.00 p.m. The rest of the evidence is not germane for the purpose of this case. It may, however, be mentioned that one should always give some room for a difference of a few minutes in the time that a layman like PW 7 would say. We cannot assume that when the witness stated that he had dropped Manju and others at 11.00 p.m., it was exactly 11.00 p.m. it would have been 10 15 minutes this way or that way. His evidence is only material to show the approximate time when Manju returned to the apartments. The next witness on this point is PW 28, K.N. Kadu. This witness corroborates PW 7 and stated he had heard the sound of a rickshaw near the apartments when the wife of A 2, Manju and 3 children entered the apartments and went to their rooms. He 144 further says that after about 15 minutes he saw the appellant coming on a scooter and while he was parking his scooter the witness asked him why did he come so late to which he replied that he was busy in some meeting. This would show that the appellant must have arrived at the apartments near about 11.30 or 11.45 p.m. It is very difficult to fix the exact time because the witness himself says that he had given the timings approximately. The High Court was, therefore, not justified in fixing the time of arrival of Manju and party or the appellant with almost mathematical precision for that would be a most unrealistic approach. The High Court seems to have speculated that Manju must have died at 12.00 a.m., that is to say, within 15 20 minutes of the arrival of the appellant. It is, however, impossible for us to determine the exact time as to when Manju died because even Dr. Banerjee says in his evidence that the time of death of the deceased was between 18 to 36 hours which takes us to even beyond past 12 in the night. At any rate, this much is certain that Manju must have died round about to 2.00 a.m. because when Dr. Lodha arrived at 2.45 a.m. he found her dead and he had also stated that rigor mortis had started setting in, It is. therefore, difficult to fix the exact time as if every witness had a watch which gave correct and exact time. Such an inference is not at all called for. The third stage of this matter is that while the witness was sleeping he heared the sound of the starting of a scooter and got up from his bed and saw appellant and A 2 going away. Therefore, he found 7 8 persons coming and going on their scooters. The High Court seems to suggest that this must have happened by about 1.30 p.m. Even so, this does not prove that Manju have died at midnight. As the witness had been sleeping and was only aroused by the sound of scooters, it would be difficult to fix the exact time when he saw the appellant and A 2 going out on their scooters. His evidence, therefore, was rightly relied upon by the High Court in proving the facts stated by him. PW 29, B.K. Kadu, who was serving as a watchman at the Takshila apartments says that near about the midnight he was called by Rameshwar, A 2 and on hearing the shouts he went to flat No. 5. He further says that A 2 directed him to unbolt or unchain the door but the door was not found closed from inside and hence A 2 went out and returned after some time. While the witness was 145 standing at the door A 2 returned and after his return the witness also came back to his house and went to sleep. Perhaps the witness was referring to the incident when A 1 and A 2 had gone on scooter to fetch Dr. Lodha. During cross examination the witness admitted that he did not possess any watch and gave the timings only approximately. We shall accept his evidence in toto but that leads us nowhere. This is all the evidence so far as the first stage of the case is concerned and, in all probability, it does not at all prove that A 1 had murdered the deceased. On the other hand, the circumstances proved by the three witness are not inconsistent with the defence plea that soon after entering the room Manju may have committed suicide. Part II of this circumstance relates to the coming of Dr. Lodha and then Dr. Gandhi on the scene of occurrence and we accept their evidence in toto. Dr. Lodha was a family doctor of the appellant 's family and it was quite natural to send for him when the appellant suspected that his wife was dead. Although Dr. Lodha (PW 24) was a family doctor of the appellant 's family yet he did not try to support the defence case and was frank enough to tell the accused and those who were present there that it was not possible for him to ascertain the cause of death which could only be done by a postmortem. In other words, he indirectly suggested that Manju 's death was an unnatural one, and in order to get a second opinion he advised that Dr. Gandhi (PW 25) may also be summoned. Accordingly, Dr. Gandhi was called and he endorsed the opinion of Dr. Lodha. Such a conduct on the part of the appellant or the persons belonging to his family is wholly inconsistent with the allegation of the prosecution that the appellant had murdered the deceased. The High Court seems to have made one important comment in that why Dr. Lodha and Dr. Gandhi were called from some distance when Dr. Kelkar, who was a skin specialist and another Doctor who was a child expert, were living in the same building. This comment is neither here nor there. It is manifest that Birdichand was a respectable person of the town and when he found that his daughter in law had died he would naturally send for his family doctor rather then those who were not known to him. 146 It appears that PW 30 Mohan Asava was also summoned on telephone and when he came at the scene of occurrence he found A 2, Birdichand sitting on the floor of the room and Bridichand hugged him out of grief, and told him that Manju had died of shock and the Doctors were not prepared to give a death certificate. In order to understand the evidence of this witness it may be necessary to determine the sequence of events so for as PW 30 is concerned. The witness has stated that while he was sleeping he was aroused from his sleep by a knock at the door by Ram Vilas Sharda (brother of appellant) at about 4.00 or 4.15 a.m. Ram Vilas told him that Manju had died and the doctors were not prepared to give any death certificate. After having these talks the witness, alongwith Ram Vilas, proceeded to the apartments and remained there till 5.15. Then he returned to his house, took bath and at about 6.30 a.m. he received a telephone call from Ram Vilas for lodging a report with the police with the request that the time of death should be given as 5.30 a.m. Consequently, he reached the police station near about 7.00 or 7.15 a.m. and lodged a report stating that Manju had died at 5.30 a.m. This witness appears to be of doubtful antecedents and, therefore, his evidence has to be taken with a grain of salt. He admitted in his statement at p. 387 that some proceedings about evasion of octroi duty were pending against him in the Court. He also admitted that he was convicted and sentenced to 9 months R.I under the Food Adulteration Act in the year 1973. Apart from this it appears that most of the statements which he made in the Court against Birdichand and the other accused, were not made by him before the police. These statements were put to him and he denied the same but they have been proved by the Investigation Officer, PW 40 whose evidence appears at p. 521 of Part II of the printed paperbook. These belated statements made in the Court may be summarised thus: While in his statement before the court the witness at p. 386 (para 19) states that the death of Manju was suspicious yet he made no such statement before the police on being confronted by the statement of PW 40. Another important point on which his statement does not appear to be true is that the dominent fact 147 mentioned to him by Birdichahd and others was that the doctors were not prepared to issue death certificate but he did not say so before the police. Similarly, he deposed in the court about the statement made to him by Birdichand that he would lose his prestige and therefore the body should be cremated before 7.00 a.m, but he advised him not to do so unless he has informed the police otherwise his whole family would be in trouble. Almost the entire part of his evidence in para 5 at p. 381 appears to be an afterthought, as PW 40 stated thus: "I recorded the statement of PW 30 Mohan Asava. He did not state before me that death of Manju was suspicious. He did not state before me that Accused No. 3 informed him that the Doctors were not prepared to issue the death certificate. He did not state before me that the demand was made of the death certificate from the Doctors or the Doctors refused to give the same. During his statement this witness did not make the statements as per para No. 5 excluding the portions from A to F of his examination in chief. " The portions referred to as 'A to F ' in para No. 5 of examination in chief of PW 30 may be extracted thus: "Birdichand then started telling me that Manju had died on account of shock and that he said that she died of heart attack under any circumstance he wanted to cremate Manju before 7.O ' clock when he said that he would spend any amount but wanted to cremate her before 7.00 a.m." This statement does not appear to be true for the following reasons. (a) Birdichand knew full well that PW 30 was a police contact constable and as he was not prepared to persuade the doctors to give a death certificate, his attitude was hardly friendly as he was insisting that the matter should be reported to the police. It is, therefore, difficult to believe that Birdichand would take such a great risk in laying all his cards on the table knowing full well that the witness was not 148 so friendly as he thought and therefore he might inform the police; thereby he would be in a way digging his own grave. (b) On a parity of reasoning it would have been most improbable on the part of the appellant, after having decided to report the matter to the police, to ask PW 30 to report the time of death as 5.30 a.m. knowing full well his attitude when he came to the apartments. It is not at all understandable how the witness could have mentioned the time of Manju 's death as 5.30 a.m. or, at any rate, when her death was known to her husband and when he himself having gone to the apartments near about 4.15 a.m. knew full well that Manju had died earlier and that Dr. Lodha and Dr. Gandhi had certified the same and advised Birdichand to report the matter to the police. In the original Ex 120 (in Marathi language), it appears that the time of death given by the witness is 'Pahate ' which, according to Molesworth 's Marathi English Dictionary at p. 497, means 'The period of six ghatika before unrise, the dawn ' i. e., about 2 hours 24 minutes before sunrise (one ghatika is equal to 24 minutes). This would take us to near about 3.00 a.m. Either there is some confusion in the translation of the word 'Pahate ' or in the words '5.30 a.m. ', as mentioned in the original exhibit 120. However, nothing much turns on this except that according to the witness Manju must have died around 3.00 a.m. which is consistent with the evidence of Dr. Lodha that when he examined Manju at about 2.30 a.m. he found her dead and rigor mortis had already started setting in. We are not concerned here with the controversy whether the report was admissible under section 154 or section 174 of the Code of Criminal Procedure but the fact remains that the policd did receive the information that the death took place at 5.30 a.m. The High Court seems to have made a capital out of this small incident and has not made a realistic approach to the problem faced by Birdichand and his family. Being a respectable man of the town, Birdichand did not want to act in a hurry lest his reputation may suffer and naturally required some time to reflect and consult his friends before taking any action. The allegation that A 3 told him to report the time of death as 5.30 a.m. is not at all proved but is based on the 149 statement of PW 30, before the police. Thus, the approach made by the High Court to this aspect of the matter appears to be artificial and unrealistic as it failed to realise that the question of the time of death of the deceased as 5.30 a.m. could never have been given by the appellant or any other accused because they knew full well that the two doctors had examined the whole matter and given the time of death as being round about 1.30 a.m. Having known all these facts how could anyone ask PW 30 to give the time of death at the police station as 5.30 a.m. Thus, it will be difficult for us to rely on the evidence of such a witness who had gone to the extent of making wrong statements and trying to appease both Birdichand and the prosecution, and, therefore, his evidence does not inspire any confidence. The last part of the case on this point is the evidence of PWs 2 and 4, where the appellant is said to have told them that he had sexual intercourse with his wife near about 5.00 a.m. on the 12th June 1982. Apart from the inherent improbability in the statement of the appellant, there is one other circumstance which almost clinches the issue. It appears that Kalghatgi (PW 20), Inspector in charge of the police station made a query from Dr. Banerjee which is extracted below: Whether it can be said definitely or not as to whether sexual intercourse might have taken just prior to death ?" The above query was made in exhibit 129 and the answer of the Doctor appears in exhibit 187 which is extracted below: "From clinical examination there was no positive evidence of having any recent sexual, intercourse just prior to death." This positive finding of the Doctor therefore knocks the bottom out of the case made out by the prosecution tion that the appellant had told PWs 2 and 4 about having sexual intercourse with his wife. Unfortunately, however, the High Court instead of giving the benefit of this important circumstance to the accused has given the benefit to the prosecution which is yet another error in the approach made by the Eight Court while assessing the prosecution evidence. Having regard to the very short margin of time between the arrival of the appellant in his bed room and the death of Manju, it seems 150 to be well nigh impossible to believe that he would try to have sexual intercourse with her. This circumstance, therefore, falsifies the evidence of PWs 2 and 4 on this point and shows the extent to which the witnesses could go to implicate the appellant. Finally, in view of the disturbed nature of the state of mind of Birdichand and the catastrophe faced by him and his family, it is difficult to believe that the grief expressed and the tears shed by the appellant when PW 2 met him could be characterised as fake. If it is assumed that the accused did not commit the murder of the deceased then the weeping and wailing and expressing his grief to PW 2 would be quite natural and not fake. There are other minor details which have been considered by the High Court but they do not appear to us to be very material. Taking an overall picture on this part of the prosecution case the position seems to be as follows: (1) if the accused wanted to give poison while Manju was wide awake, she would have put up stiffest possible resistance as any other person in her position would have done. Dr. Banerjee in his postmortem report has not found any mark of violence or resistance. Even if she was overpowered by the appellant she would have shouted and cried and attracted persons from the neighbouring flats which would have been a great risk having regard to the fact that some of the inmates of the house had come only a short while before the appellant. (2) Another possibility which cannot be ruled out is that potassium cyanide may have been given to Manju in a glass of water, if she happened to ask for it. But if this was so, she being a chemist herself would have at once suspected some foul play and once her suspicion would have arisen it would be very difficult for the appellant to murder her. (3) The third possibility is that as Manju had returned pretty late to the flat she went to sleep even before the arrival of the appellant and then he must have tried to 151 forcibly administer the poison by the process of mechanical suffocation, in which case alone the deceased could not have been in a position to offer any resistance. But this opinion of the Doctor has not been accepted by the High Court which, after a very elaborate consideration and discussion of the evidence, the circumstances and the medical authorities, found that the opinion of the Doctor that Manju died by mechanical suffocation has not been proved or, at any rate, it is not safe to rely on such evidence. In this connection, we might refer to the finding of fact arrived at by the High Court on this point: "In view of the above position as is available from the evidence of Dr. Banerjee and from the observations made by the medical authorities it will not be possible to say that the existence of the dark red blood in the right ventricle exclusively points out the mechanical suffocation particularly when such phenomenon is available in cases of poisoning by potassium cyanide." (PB p. 147 48) "In view of this answer it will not be possible to say conclusively that this particular symptom of observation is exclusively available in case of mechanical suffocation. Thus we have discussed all the seven items on which Dr. Banerjee has relied for the purpose of giving an opinion that there was mechanical suffocation. In our view, therefore, those 7 findings would not constitute conclusive date for the purpose of holding that there was mechanical suffocation. As the 7 findings mentioned above can be available even in the case of cyanide poisoning we think that it would not be safe to rely upon these circumstances for recording an affirmative finding that there was mechanical suffocation. As the 7 findings mentioned above can be available even in the case of cyanide poisoning we think that it would not be safe to rely upon these circumstances for recording an affirmative finding that there was mechanical suffocation." (P.150 151) It is not necessary for us to repeat the circumstances relied upon by the High Court because the finding of fact speaks for itself. 152 This being the position, the possibility of mechanical suffocation is completely excluded. (4) The other possibility that may be thought of is that Manju died a natural death. This also is eliminated in view of the report of the Chemical Examiner as confirmed by the postmortem that the deceased had died as a result of administration of potassium cyanide. (5) The only other reasonable possibility that remains is that as the deceased was fed up with the maltreatment by her husband, in a combined spirit of revenge and hostility after entering the flat she herself took potassium cyanide and lay limp and lifeless. When the appellant entered the room he must have thought that as she was sleeping she need not be disturbed but when he found that there was no movement in the body after an hour so, his suspicion was roused and therefore he called his brother from adjacent flat to send for Dr. Lodha. In these circumstances, it cannot be said that a reasonable possibility of the deceased having committed suicide, as alleged by the defence, can be safely ruled out or eliminated. From a review of the circumstances mentioned above, we are of the opinion that the circumstance of the appellant having been last seen with the deceased has not been proved conclusively so as to raise an irresistible inference that Manju 's death was a case of blatant homicide. This now brings us to an important chapter of the case on which great reliance appears to have been placed by Mr. Jethmalani on behalf of the appellant. Unfortunately, however, the aspect relating to interpolations in the postmortem report has been completely glossed over by the High Court which has not attached any importance to the infirmity appearing in the medical evidence in support of the said interpolations. Although the learned counsel for the appellant drew our attention to a number of interpolations in the postmortem report as also the report sent to the Chemical Examiner, we are impressed only with two infirmities which merit 153 serious consideration. To begin with, it has been pointed out that in the original postmortem notes which were sent to Dr. Banerjee (PW 33) for his opinion, there is a clear interpolation by which the words `can be a case of suicidal death ' appear to have been scored out and Dr. Banerjee explained that since he had written the words `time since death ' twice, therefore, the subsequent writing had been scored out by him. In other words, the Doctor clearly admitted the scoring out of the subsequent portion and we have to examine whether the explanation given by him is correct. In order to decide this issue we have examined for ourselves the original postmortem notes (exhibit 128) where the writing has been admittedly scored out by Dr. Banerjee. The relevant column against which the scoring has been done is column. No. 5 which runs thus: "5. Substance of accompanying Report from Police officer or Magistrate, together with the date of death, if known. Supposed cause of death, or reason for examination. " The last line indicates that the Doctor was to note two things (1) the date of death, if known, and (2) the supposed cause of death. This document appears to have been written by PW 33 on 12.6.82 at 4.30 p.m. The relevant portion of the words written by the Doctor are `time since dealt ' which were repeated as he states in his statement. After these words some other words have been admittedly scored out and his (PW 33) explanation was that since he had written `time since death ' twice, the second line being a repetition was scored out. A bare look at exhibit 128 does not show that the explanation given by the Doctor is correct. We have ourselves examined the said words with the help of a magnifying glass and find that the scored words could not have been `time since death '. The only word common between the line scored out and the line left intact is `death '. To us, the scored out words seem to be `can be a case of suicidal death '. Dr Banerjee however stuck to his original stand which is not supported by his own writing in the document itself. It seems ' to us that at the first flush when he wrote the postmortem notes it appeared to him that no abnormality was detected and that it appears to be a case of suicide rather than that of homicide. This, therefore, if the strongest possible circumstance to make the defence highly probable, if not certain. Furthermore, the Doctors 's explanation that the scored words were "time since death", according to the said explanation, the scored words ore only three whereas 154 the portion scored out contains as many as seven words. Hence the explanation of the Doctor is not borne out from the document. It is true that the Doctor reserved his opinion until the chemical examiner 's report but that does not answer the question because in column No.5 of postmortem note Dr. Banerjee has clearly written "can be a case of suicidal death" which indicates a that in the absence of the report of the chemical examiner, he was of the opinion that it could have been a case of suicide. In his evidence, PW 33 stated that in Exh. 128 in column No. 5 the contents scored out read `time since death ' and since it was repeated in the next line, he scored the words in the second line. Despite persistent cross examination the Doctor appears to have stuck to his stand. It cannot, therefore, be gainsaid that this matter was of vital importance and we expected the High Court to have given serious attention to this aspect which goes in favour of the accused. Another interpolation pointed out by the learned counsel is regarding position of tongue as mentioned in Exh. In the original while filling up the said column the Doctor appears to have scored out something; the filled up entry appears thus `mouth is closed with tip (something scored out) seen caught between the teeth '. But in the carbon copy of the report which was sent to the Chemical Examiner (Exh. 132) he has added `caught between the teeth ' in ink but in the original there is something else. This is fortified by the fact that the copy of the report actually sent to the chemical examiner does not contain any interpolation against the said column where the filled up entry reads `Inside mouth '. The combined effect of these circumstances show that Dr. Banerjee (PW33) tried to introduce some additional facts regarding the position of the tongue. Perhaps this may be due to his final opinion that the deceased died due to mechanical suffocation which might lead to the tongue being pressed between the teeth. This, however, throws a cloud of doubt on the correctness or otherwise of the actual reports written by him and the one that was sent to the Chemical Examiner. It is obvious that in the carbon copy which was retained by the Doctor, the entries must have been made after the copy was sent to the Chemical Examiner. However, this circumstance is not of much consequence because the opinion of the Doctor that Manju died by forcible administration of potassium cyanide or by the process of mechanical suffocation has not been proved. 155 This aspect need not detain us any further because the High Court has not accepted the case of mechanical suffocation. So far as the other findings of Dr. Banerjee are concerned we fully agree with the same. A number of comments were made on behalf of the appellant about Dr. Banerjee 's integrity and incorrect reports but subject to what we said, we do not find any substance in those contentions. In para 90 of its judgment the High Court has given a number of circumstances which according to it, go to prove the prosecution case showing that the appellant had administered the poison during the night of 11th June, 1982. These circumstances may be extracted thus: (1) In the bed room Manju died of poisoning between 11.30 p.m. and 1. a.m. in the night between 11/12th June, 1982. (2) Accused No. 1 was present in that bed room since before the death of Manju i.e. since about 11.15 p.m. (3) Accused No, 1 did not return to the flat at 1.30 a.m or 1.45 a.m. as alleged. (4) The conduct of accused No. 1 in not calling for the immediate help of Dr. Shrikant Kelkar and/or Mrs. Anjali Kelkar is inconsistent with his defence that he felt suspicious of the health of Manju when he allegedly returned to the flat at 1.30 a.m. (5) In different conduct of accused No. 1 when Dr. Lodha and Dr. Gandhi went to the flat in Takshila apartment, Accused No. 1 did not show any anxiety which one normally finds when the doctor comes to examine the patient. Accused No. 1 should have accompanied the doctors when they examined Manju and should have expressly or by his behaviour disclosed his feelings about the well being of his wife. It was also necessary for him to disclose the alleged fact that he saw Manju in a suspicious condition when he returned at about 1.30 a.m. Or so. (6) An attempt of Birdichand to get the cremation of Manju done before 7 a. m. On 12. 6 82 even by spending any amount for that purpose. This conduct though 156 of Birdichand shows the conduct of a person to whom Accused No. 1 had gone and informed as to what had happened. (7) Delay and false information to police at the hands of Mohan Asava. Though the information is given by Mohan as per the phone instructions of accused No. 3 it is, presumed that accused No. 1 must have told accused No. 3 about the incident and on that basis accused No.3 gave instructions to Mohan Asava. (8) Accused No. 1 himself does not take any action either personally or through somebody else to give correct information to police. (9) Arrangement of the dead body to make show that Manju died a peaceful and natural death. (10) Accused No. 1 has a motive to kill Manju as he wanted to get rid of her to continue relations with Ujvala. (11) Absence of an anklet on left ankle of Manju is inconsistent with the defence that Manju committed suicide. (12) The conduct of the accused in concealing the anklet in the fold of the Chaddar is a Conduct of a guilty man. (13) The door of the bedroom was not found bolted from inside. This would have been normally done by Manju if she had committed suicide. (14) Potassium cyanide must not have been available to Manju. (15) Manju was 4 to 6 weeks pregnant. This is a circumstance which would normally dissuade her from committing suicide. (16) Denial of the part of accused No. 1 of admitted or proved facts. (17) Raising a false plea of absence from the bedroom at the relevant time. 152 155) 157 We have already discussed most of the circumstances extracted above and given our opinion, and have also fully explained the effect of circumstances Nos. 1,2,3,4,5 and 6. We might again even at the risk of repetition say that too much reliance seems to have been placed by the High Court on circumstance No. 4 as the appellant did not immediately call for Dr. Shrikant Kelkar (PW 26) and Dr. (Mrs.) Anjali Kelkar (PW 27). In a matter of this magnitude it would be quite natural for the members of the appellant 's family to send for their own family doctor who was fully conversant with the ailment of every member of the family. In these circumstances there was nothing wrong if the appellant and his brother went to a distance of 11/2 Km. to get Dr. Lodha. Secondly, Dr. Shrikant Kelkar was skin specialist whereas Dr. (Mrs) Anjali Kelkar was a Paediatrician and the appellant may have genuinely believed that as they belonged to different branches, they were not all suitable to deal with such a serious case. The High Court was, therefore, wrong in treating this circumstance as an incriminating conduct of the appellant. Circumstance No. 5 is purely conjectural because as soon as Dr. Lodha came he examined Manju and advised that Dr. Gandhi be called. We fail to understand what was the indifferent conduct of the appellant when he had sent for the two Doctors who examined the deceased. The appellant was in the same room or rather in an adjacent room when the deceased was being examined. From this no inference can be drawn that the appellant was indifferent to the state in which Manju was found. As regards circumstance No. 6 we have already explained this while dealing with the evidence of Mohan Asava, PW 30. As regards circumstance No. 7, the High Court has presumed that there being no dependable evidence that the information given to the police by PW 30 was false and that the appellant must have told A 3 about the incident on the basis of which he gave instructions to PW 30. This is also far from the truth as has been pointed out by us while dealing with the evidence of PW 30. Circumstance No. 8 is that PW 30 was asked to report the matter to the police. When the dead body was lying in the flat what action could the appellant have taken except reporting the matter to the police through one of his known persons. So far as 158 circumstances Nos. 9 and 10 are concerned, they do not appear to us to be of any consequence because, as shown by us, from a reading of the letters (Exhs. 30,32 and 33) and the conduct of the appellant, we do not find any evidence of a clear motive on the part of the appellant to kill Manju. Circumstances Nos. 11 and 12 are also of no assistance to the prosecution because whether the anklet was in the chaddar or elsewhere is wholly insignificant and does not affect the issue in question at all. Circumstance No. 13 is also speculative because if the bedroom was not found bolted from inside that would it self not show that Manju could not have committed suicide. Various persons may react to circumstances in different ways. When Manju entered her bedroom her husband had not come and since she went to sleep she may not have bolted the door from inside to enable her husband to enter the room. As regards circumstance No. 14, the High Court has overlooked a very important part of the evidence of PW 2 who has stated at page 178 of part I of the printed paperbook thus: "The plastic factory at Beed is a partnership concern in which two sons of Dhanraj, my wife and sister in law, i.e., brother 's wife are partners. " Dr. Modi 's Medical Jurisprudence and Texicology (19th Edn.) at page 747 shows that `Cyanide is also used for making basic chemicals for plastics '. Apart from the fact that the High Court in relying on this circumstance has committed a clear error of record, it is an additional factor to show that cyanide could have been available to Manju when she visited Beed for the last time and had stayed there for more than a week. Circumstance No.15 the fact that Manju was 4 to 6 weeks pregnant would dissuade Manju from committing suicide is also purely speculative. A pregnancy of 4 to 6 weeks is not very serious and can easily be washed out. Moreover, when a person has decided to end one 's life these are matters which do not count at all. On the other hand, this circumstance may have prompted her to commit suicide for a child was born to her, in view of her ill treatment by her husband and her in laws, the child may not get proper upbringing. Any way, we do not want to land ourselves in the field of surmises and conjectures as the High Court has done. 159 Circumstance No. 17 is wholly irrelevant because the prosecution cannot derive any strength from a false plea unless it has proved its case with absolute certainty. Circumstance No.17 also is not relevant because there is no question of taking a false plea of absence from the bedroom at the relevant time as there is no clear evidence on this point. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4,5,6,8,9,11,12,13,16, and 17. As these circumstances were not put to the appellant in his statement under s.313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Fateh Singh Bhagat Singh vs State of Madhya Pradesh(1) this Court held that any circumstance in respect of which an accused was not examined under section 342 of the Criminal procedure code cannot be used against him ever since this decision. there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under s.342 of the or s.313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule vs State of Maharashtra(2) this Court held thus: "The fact that the appellant was said to be absconding not having been put to him under section 342, Criminal Procedure Code, could not be used against him." To the same effect is another decision of this Court in Harijan Megha Jesha vs State of Gujarat (3) where the following observation were made: "In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement 160 under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant. ': It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decision of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under s.313 of the Criminal Procedure Code have to be completely excluded from consideration. We might mention here an important argument advance by counsel for the appellant and countered by the Additional Solicitor General. It was argued before the High Court that it was highly improbable that if the betrothal ceremony of appellant 's sister, which was as important as the marriage itself, was going to be performed on the 13th of June, would the appellant clouse a day before that for murdering his wife and thereby bring disgrace and destruction not only to his family but also to her sister. We have already adverted to this aspect of the matter but it is rather interesting to note how the High Court has tried to rebut this inherent improbability, on the ground that in a case of administration of poison the culprit would just wait for an opportunity to administer the same and once he gets the opportunity he is not expected to think rationally but would commit the murder at once. With due respect to the Judges of the High Court, we are not able to agree with the somewhat complex line of reasoning which is not supported by the evidence on record. There is clear evidence, led by the prosecution that except for a week or few days of intervals, Manju always used to live with her husband and she had herself complained that he used to come late at night. Hence, as both were living alone in the same room for the last four months there could be no dearth of any opportunity on the part of the appellant to administer poison if he really wanted to do so. We are unable to follow the logic of the High Court 's reasoning that once the appellant got an opportunity he must have clung to it. The evidence further shows that both Manju and appellant had gone for a honeymoon outside Pune and even at that time he could have murdered her and allowed the case to pass for a natural death. However, these are matters of conjectures. The Additional Solicitor General realising the hollowness of the High Court 's argument put it in a different way. He submitted that as the deceased was 4 6 weeks pregnant the appellant realised 161 that unless the deceased was murdered at the behest it would become very difficult for him to murder her, even if he had got an opportunity, if a child was born and then he would have to maintain the child also which would have affected his illicit connections with Ujvala. This appears to be an attractive argument but on close scrutiny it is untenable. If it was only a question of Manju 's being 4 6 weeks pregnant before her death, the appellant could just as well have waited just for another fortnight till the marriage of his sister was over which was fixed for 30th June, 1982 and then either have the pregnancy terminated or killed her. Moreover, it would appear from the evidence of PW 2 (P.176) that in his community the Kohl ceremony is not merely a formal betrothal but a very important ceremony in which all the near relations are called and invited to attend the function and a dinner is hosted. We might extract what PW 2 says about this: "At the time of Kohl celebration of Manju, on 2.8.1981 my relatives i.e. my sister from outside had attended this function and many people were invited for this function. A dinner was also hosted by me. In that function the father of the bridegroom is required to spend for the dinner while the presentations made to the bride are required to be given or donned at the expenses of the side of bridegroom This programme is not attended by the bridegroom." (P.176) As Birdichand and others were made co accused in the case they were unable to give evidence on this point but it is the admitted case of both the parties that the accused belonged to the same community as PW 2. In these circumstances, it is difficult to accept the argument that the appellant would commit the murder of his wife just on the eve of Kohl ceremony, which he could have done the same long before that ceremony or after the marriage as there was no hurry nor any such impediment which would deny him any opportunity of murdering his wife. We now come to the nature and character of the circumstantial evidence. The law on the subject is well settled for the last 6 7 decades and there have been so many decisions on this point that the principles laid down by courts have become more or less axiomatic. 162 The High Court has referred to some decisions of this Court and tried to apply the ratio of those cases to the present case which, as we shall show, are clearly distinguishable. The High Court was greatly impressed by the view taken by some courts, including this Court, that a false defence or a false plea taken by an accused would be an additional link in the various chain of circumstantial evidence and seems to suggest that since the appellant had taken a false plea that would be conclusive, taken along with other circumstances, to prove the case. We might, however, mention at the outset that this is not what this Court has said. We shall elaborate this aspect of the matter a little later It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant vs The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi vs State of Uttar Pradesh(2) and Ramgopal vs Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant 's case (supra): "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the 163 first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. " A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should ' and not 'may be ' established. There is not only a grammatical but a legal distinction between 'may be proved ' and 'must be or should be proved ' as was held by this Court in Shivaji Sahabrao Bobade & Anr. vs State of Maharashtra( ') where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be ' and 'must be ' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and 164 (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King vs Horry,(l) thus: "Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that up on no rational hypothesis other than murder can the facts be accounted for." Lord Goddard slightly modified the expression, morally certain by 'such circumstances as render the commission of the crime certain '. This indicates the cardinal principle ' of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry 's case (supra) was approved by this Court in Anant Chintaman Lagu vs The State of Bombay(2) Lagu 's case as also the principles enunciated by this Court in Hanumant 's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases Tufail 's case (supra), Ramgopals case (supra), Chandrakant Nyalchand Seth vs The State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19.2.58), Dharmbir Singh vs The State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4.11.1958). There are a number of other cases where although Hanumant 's case has not 165 been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed vs Delhi Administration(l). Mohan Lal Pangasa vs State of U.P.,(2) Shankarlal Gyarasilal Dixit vs State of Maharashtra(3) and M.C. Agarwal vs State of Maharashtra(4) a five Judge Bench decision. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra vs The State of Bihar(5), to supplement this argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: "But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation such absence of explanation of false explanation would itself be an additional link which completes the chain. " It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation. 166 If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal 's case (supra) where this Court observed thus: "Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." This Court, therefore, has in no way departed from the five conditions laid down in Hanumant 's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant 's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor General Moreover, in M.G. Agarwal 's case (supra) this Court while reiterating the principles enunciated in Hanumant 's case observed thus: "If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt." In Shankarlal 's (supra) this Court reiterated the same view thus: "Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment". We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, 167 one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram vs State of Himachal Pradesh,(l) this Court made the following observations: "Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence. " We now come to the mode and manner of proof of cases of murder by administration of poison. In Ramgopal 's case (supra) this Court held thus: "Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question ? (secondly), had the accused the poison in his possession ? and (thirdly), had the accused an opportunity to administer the poison in question to the deceased ? It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death. " So far as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction: (1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased. 168 In the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his possession. On the other hand, as indicated above, there is clear evidence of PW 2 that potassium cyanide could have been available to Manju from the plastic factory of her mother, but there is no evidence to show that the accused could have procured potassium cyanide from any available source. We might here extract a most unintelligible and extra ordinary finding of the High Court "It is true that there is no direct evidence on these two points, because the prosecution is not able to lead evidence that the accused had secured potassium cyanide poison from a particular source. Similarly there is no direct evidence to prove that he had administered poison to Manju. However, it is not necessary to prove each and every fact by a direct evidence. Circumstantial evidence can be a basis for proving this fact." (P.160) The comment by the High Court appears to be frightfully vague and absolutely unintelligible. While holding in the clearest possible terms that there is no evidence in this case to show that the appellant was in possession or poison, the High Court observes that this fact may be proved either by direct or indirect (circumstantial) evidence. But it fails to indicate the nature of the circumstantial or indirect evidence to show that the appellant was in possession of poison. If the court seems to suggest that merely because the appellant had the opportunity to administer poison and the same was found in the body of the deceased, it should be presumed that the appellant was in possession of poison, than it has committed a serious and gross error of law and has blatantly violated the principles laid down by this Court. The High Court has not indicated as to what was the basis for coming to a finding that the accused could have procured the cyanide. On the other hand, in view of the decision in Ramgopal 's case (supra) failure to prove possession of the cyanide poison with the accused by itself would result in failure of the prosecution to prove its case. We are constrained to observe that the High Court has completely misread and misconstru 169 ed the decision in Ramgopal 's case. Even prior to Ramgopol 's case there are two decisions of this Court which have taken the same view. In Chandrakant Nyalchand Seth 's case (Criminal Appeal No. 120 of 1957 decided on 19.2.58) this Court observed thus: "Before a person can be convicted of murder by poisoning, it is necessary to prove that the death of the deceased was caused by poison, that the poison in question was in possession of the accused and that poison was administered by the accused to the deceased. There is no direct evidence in this case that the accused was in possession of Potassium Cyanide or that he administered the same to the deceased. " The facts of the case cited above were very much similar to the present appeal. Here also, the Court found that circumstances afforded a greater motive to the deceased to commit suicide than for the accused to commit murder. This view was reiterated in Dharambir Singh 's case (Criminal Appeal No. 98 of 1958 decided on 4.11.1958) where the court observed as follows: "Therefore, along with the motive, the prosecution has also to establish that the deceased died of a particular poison said to have been administered, that the accused was in possession of that poison and that he had the opportunity to administer the same to the deceased: (see Mt. Gujrani and another vs Emperor( '). It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, in a case of circumstantial evidence, that the poison was administered by the accused to the deceased resulting in his death. We feel that it was not right for the High Court to say, when this link in the chain had failed, that it could not be very difficult for anybody to procure potassium cyanide and therefore the absence of proof of possession of potassium cyanide by the accused was practically of no effect. On the facts as found by the High Court it must be held that the second of the three facts which have to be proved, in case of poisoning based on circumstantial evidence has not been proved, namely that the accused was in possession of the poison that had been found in the body Can it 170 be said in these circumstances when the proof of a very vital fact namely, that the accused was in possession of potassium cyanide, has failed that the chain of circumstantial evidence, is so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and that the evidence which remains after the rejection of this fact is such as to show that within all human probability the act must have been done by the accused. " We are, therefore, clearly of the opinion that the facts of the present appeal are covered by the ratio of the aforesaid decisions. At any rate, taking the worst view of the matter on the evidence in this case two possibilities are clearly open (1) that it may be a case of suicide, or (2) that it may be a case of murder and both are equally probable, hence the prosecution case stands disproved. We now proceed to deal with some of the judgments of this Court on which great reliance has been placed by the High Court. In the first place, the High Court relied on the case of Pershadi vs State of Uttar Pradesh( '). This case appears to be clearly distinguishable because no point of law was involved therein and on the facts proved and the very extraordinary conduct of the accused, the court held that the circumstantial evidence was consistent only with the guilt of the accused and inconsistent with any other rational explanation. Indeed, if this would have been our finding in this particular case, there could be no question that the conviction of the accused would have been upheld. The next on which the High Court placed great reliance is case Lagu 's case (supra). This case also does not appear to be of any assistance to the prosecution. In the first place, the case was decided on the peculiar facts of that case. Secondly, even though the corpus deliciti was not held to be proved yet the medical evidence and the conduct of the accused unerringly pointed to the inescapable conclusion that the death of the deceased was as a result of administration of poison and that the accused was the person who admini 171 stered the same. however, is not the case here. On the other hand, we have held that the conduct of the appellant has not been proved to be inconsistent with his guilt and on this ground alone the present case can be easily distinguished. If at all it is an authority it is on the point that this Court is not required to enter into an elaborate examination of the evidence unless there are very special circumstances to justify the same. At this Court in that case was clearly of the view that the High Court had fully considered the facts and a multitude of circumstances against the accused remained unexplained, the presumption of innocence was destroyed and the High Court was therefore right in affirming the conviction. Of course, Sarkar, J. gave a dissenting judgment. From a detailed scrutiny of the decision cited above (Lagu 's Case) we find that there is nothing in common between the peculiar facts of that case and the present one. Hence, this authority is also of no assistance to the prosecution. Reliance was then placed on the case of Ram Dass vs State of Maharashtra(l) but we are unable to see how this decision helps the prosecution. The High Court relied on the fact that as the accused had taken the deceased immediately to the Civil Hospital in order to stop the poison from spreading, this particular fact was eloquent enough to speak for the innocence of the accused. A careful perusal of that decision shows that this Court did not accept the prosecution case despite circumstances appearing in that case which are almost similar to those found in the present one. Moreover, here also the accused had immediately sent for their family Doctor after they had detected that Manju was dead. The reason for a little delay in lodging the FIR has already been explained by us while dealing with the facts. In the decision cited above, it was clearly held that the case against the accused was not proved conclusively and unerringly and that two reasonable views were possible, the relevant portion of which may be extracted thus: "On a consideration of the evidence and the circumstances referred to above, we are satisfied that this is a case in which the circumstantial evidence did not prove the case against the accused conclusively and unerringly, and at any rate two reasonable views were possible. " 172 We have already found in the instant case that taking the prosecution at the highest the utmost that can be said is that two views one in favour of the accused and the other against him were possible. Ram Dass 's case also therefore supports the appellant rather than the prosecution. The last case relied upon by the High Court is Shankarlal 's case (supra) but we are unable to see how this case helps the prosecution. The observations on which the High Court has relied upon appears to have been torn from the context. On the other hand, this decision fully supports the case of the appellant that falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. This decision has already been dealt with by us while considering the merits of the present case and it is not necessary to repeat the same. These are the only important cases of this Court on which the High Court seeks to rely and which, on a close examination, do not appear to be either relevant or helpful to the prosecution case in any way. On the other hand, some of the observations made in these cases support the accused rather than the prosecution. This now brings us to the fag end of our judgment. After a detailed discussion of the evidence, the circumstances of the case and interpretation of the decisions of this Court the legal and factual position may be summarised thus: (1) That the five golden principles enunciated by this Court in Hanumant 's decision (supra) have not been satisfied in the instant case. As a logical corollary, it follows that it cannot be held that the act of the accused cannot be explained on any other hypothesis except the guilt of the appellant nor can it be said that in all human probability, the accused had committed the murder of Manju. In other words, the prosecution has not fulfilled the essential requirements of a criminal case which rests purely on circumstantial evidence. (2) That, at any rate, the evidence clearly shows that two views are possible one pointing to the guilt of the accused and the other leading to his innocence. It 173 may be very likely that the appellant may have administered the poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal. (3) The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either by direct of circumstantial evidence) and on this ground alone the prosecution must fail. (4) That in appreciating the evidence, the High Court has clearly misdirected itself on many points, as pointed out by us, and has thus committed a gross error of law: (5) That the High Court has relied upon decisions of this Court which are either inapplicable or which, on closer examination, do not support the view of the High Court being clearly distinguishable. (6) That the High Court has taken a completely wrong view of law in holding that even though the prosecution may suffer from serious infirmities it could be reinforced by additional link in the nature of false defence in order to supply the lacuna and has thus committed a fundamental error of law. (7) That the High Court has not only misappreciated the evidence but has completely overlooked the well established principles of law and in view of our finding it is absolutely clear that the High Court has merely tried to accept the prosecution case based on tenterhooks and slender tits and bits. (8) We entirely agree with the High Court that it is wholly unsafe to rely on that part of the evidence of Dr. Banerjee (PW 33) which shows that poison was 174 forcibly administered by the process of mechanical suffocation. (9) We also agree with the High Court that there is no manifest defect in the investigation made by the police which appears to be honest and careful. A proof positive of this fact is that even though Rameshwar Birdichand and other members of his family who had practically no role to play had been arrayed as accused but they had to be acquitted by the High Court for lack of legal evidence. (10) That in view of our finding that two views are clearly possible in the present case, the question of defence being false dose not arise and the argument of the High Court that the defence is false does not survive. This was a fit case in which the High Court should have given at least the benefit of doubt to the appellant. Normally, this Court does not interfere with the concurrent findings of fact of the courts below, in the absence of very special circumstances or gross errors of law committed by the High Court. But where the High Court ignores or overlocks the crying circumstances and proved facts, violates and misapplies the well established principles of criminal jurisprudence or decisions rendered by this Court on appreciation of circumstantial evidence and refuses to give benefit of doubt to the accused despite facts apparent on the face of the record or on its own findings or tries to gloss over them without giving any reasonable explanation or commits errors of law apparent on the face of the record which results in serious and substantial miscarriage of justice to the accused, it is the duty of this Court to step in and correct the legally erroneous decision of the High Court. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any Court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. 175 It must be recalled that the well established rule of criminal justice is that 'fouler the crime higher the proof '. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made. Manju (from the evidence on the record) appears to be not only a highly sensitive woman who expected whole hearted love and affection from her husband but having been thoroughly disappointed out of sheer disgust, frustration and depression she may have chosen to end her life at least this possibility is clearly gleaned from her letters and mental attitude. She may have been fully justified in entertaining an expectation that after marriage her husband would look after her with affection and regard. This is clearly spelt out in the letters where she hinted that her husband a was so busy that he found no time for her. A hard fact of life, which cannot be denied, is that some people in view of their occupation or profession fined very little time to devote to their family. Speaking in a light vein, lawyers, professors, Doctors and perhaps Judges fall within this category and to them Manju 's case should be an eye opener. For the reasons given above we hold that the prosecution has failed to prove its case against appellant beyond reasonable doubt. We, therefore, allow the appeal, set aside the judgments of the courts below and acquit the appellant, Sharad Bridichand Sarda, of the charges framed against him and direct him to be released and set at liberty forthwith. VARADARAJAN, J. This appeal by special leave is directed against the judgment of a Division Bench of the Bombay High Court in Criminal Appeal No. 265 of 1983 and Confirmation Case No. 3 of 1983, dismissing the appeal and confirming the sentence of death awarded to the first accused Sharad Birdhichand Sarda (hereinafter referred to as the 'appellant ') by the Additional Sessions Judge, Pune in Sessions Case No. 203 of 1982. The appellant, Rameshwar Birdhichand Sarda and Ramvilas Rambagas Sarda were accused 1, 2 and 3 respectively in the Sessions Case. The appellant and the second accused are the sons of one Birdhichand of Pune whose family has a cloth business. In addition 176 the appellant who is said to be a graduate in Chemical Engineering had started a chemical factory at Bhosari, a suburb of Pune. The third accused is uncle of the appellant and the second accused. The appellant is the husband of Manjushree alias Manju while the second accused is the husband of Anuradha (P.W.35). Birdhichand 's family has its residential house at Ravivar Peth in Pune and owns a flat in a building known as Takshasheela Apartments in Mukund Nagar area of Pune. Manju, the alleged victim in this case, was the eldest amongst the five children of Rameshwar (P.W 2) and Parwati (P.W.20). Anju (P.W.6) is the second daughter of P.W.2 who is a Commercial Tax and Income Tax Consultant since 1960. P.W.2 is living in his own house situate in Subash Road in Beed city since 1973, prior to which he was living in a rented house in Karimpura Peth in that city. Meena (P.W.5) is a school and college mate and friend of Manju who passed the B.Sc. examination in Chemistry in the First Class in 1980 while P.W.5 who had passed the 10th standard examination together with Manju was still studying in college. Rekha (P.W.3) whom Manju used to call as Vahini is another friend of Manju. She is living with her husband Dr. Dilip Dalvi in a portion of P.W.2 's house in Subash Road, Pune as his tenant. P.W.20 's elder brother Dhanraj Rathi (P.W.22) is a resident of Pune where he is doing business in the sale of plastic bags for the manufacture of which he has a plastic factory called Deepak Plastics at Beed. It is a partnership concern of P.W.20 and some others including P.W.22 's third son Shrigopal. Deepak is one of the two sons of P.Ws. 2 and 20. After Manju passed her B.Sc. degree examination in 1980 her marriage with the appellant was settled by a formal betrothal ceremony which took place in June 1981. The marriage of the appellant and Manju was performed at the expense of P.W.2 at Beed on 11.2.1982. The appellant and Manju left for Pune on 12.2.1982 after the marriage. Subsequently, P.W.2 sent his elder son Deepak for fetching Manju from the appellant 's house at Pune and they accordingly came back to Beed on 22.2.1982. The appellant went to Beed four or five days later and took Manju back to Pune on the next day after pleading his inability to stay in P.W.2 's house for some more days. This was Manju 's first visit to her parents ' house after her marriage with the appellant. She is said to have been very happy during that visit. Thereafter Manju came to her parents ' house alongwith her maternal uncle Dhanraj Rathi (P.W.22) on or about 177 2.4.1982. It is the case of the prosecution that during that visit Manju was uneasy and had generally complained against the appellant to P.Ws.3 and 6. P.W.2 planned to keep Manju in his house for about three weeks on that occasion. But news of the death of the appellant 's grand father was received in P.W.2 's house in Beed and, therefore, P.Ws. 2 and 20 and Manju went to Pune for condolences on 11.4.1982. After meeting the appellant 's father and others at Pune, P.Ws. 2 and 20 returned to Beed leaving Manju in the appellant 's house in Pune. That was the second visit of Manju to her parents ' house after marriage with the appellant. P.Ws.2 and 20 came to Pune again on or about 13.5.1982. After staying for some time as usual in the house of P.W. 22, P.Ws. 2 and 20 visited the house of Birdhichand on that occasion. It is the case of the prosecution that P.Ws. 2 and 20 found Manju disturbed and uneasy and that they, therefore, took her to the house of P.W. 22 with the permission of Birdhichand. It is also the case of the prosecution that on reaching P.W. 22 's house Manju completely broke down and started weeping in the arms of P.W.20. P.Ws. 2 and 20 returned to Beed from Pune and sent their second son Pardeep four or five days later to fetch Manju, who had, however, by then gone with the appellant to Tirupati in Andhra Pradesh. After learning that the appellant and Manju had returned to Pune, P.W.2 sent his son Deepak to fetch Manju to Beed. Accordingly Deepak brought Manju to Beed accompanied by the third accused daughter Kavita on 25.5.1982. This was Manju 's third and last visit to her parents ' house after her marriage with the appellant. It is the case of the prosecution that Manju was totally disturbed and frightened during that visit and that she complained to her mother P.W.20 against the appellant and she in turn conveyed to P.W.20 what she heard from Manju. Birdhichand went to Beed on 2.6.1982 without any prior intimation for taking Manju to Pune on the ground that Manju 's presence in his family house at pune was necessary for the betrothal ceremony of his daughter Shobha fixed for 13.6.1982 as well as for her marriage fixed for 30.6.1982. It is the case of the prosecution that when Manju came to know that her father in law Birdhichand had come for taking her to Pune she was wept and expressed her unwillingness to go to Pune and that, however, on the assurance of Birdhichand that he would see to it that nothing happened to the life of Manju, P.W.2 permitted Manju to go to Pune alongwith Birdhichand and she accordingly went to Pune on 3.6.1982 alongwith Kavita and Birdhichand. 178 The family of Birdhichand and his sons including the appellant is joint. As stated earlier they have their family 's residential house at Ravivar Peth, Pune besides the flat which they owned in the Takshasheela Apartments situate at some distance from their family house. Their flat has two bed rooms besides a hall and other portions. Birdhichand 's two married sons, the appellant and the second accused used to go to the family 's flat in the Takshasheela Apartments for sleeping during the nights. The appellant and Manju used to sleep in one of the two bed rooms while the second accused and his wife Anuradha (P.W.35) and their children used to sleep in the other bed room. Manju had written amongst others, three letters, Ex.33 dated 25.4.1982 to her friend vahini (P.W.3) and exhibit p. 30 dated 8.2.1982 and p. 32 dated 8.6.1982 to her younger sister Anju (P.W.6). In exhibit 33 Manju has stated inter alia that she was feeling lonely though all persons in pune were very good and everybody was loving and that one reason is that there are many elderly persons in the house and, therefore, she does not dare to do any work independently and the fear which is in her mind every time leads to confusion. She has also stated in that letter though all person in Pune were very good that she becomes angry if he (appellant) does not speak to her when she goes and talks to him even ten times and that till now this man (appellant) had no time to mind his wife. She has stated in that letter that she dare not ask him (appellant) whether his clothes be taken for washing and that at present her status is only that of an unpaid maid servant. She has finally stated in that letter that on the day on which self pride in the appellant is reduced no other person will be more fortunate than her but it is not certain whether she will be alive until that date. In exhibit 30 she has stated inter alia that she was undergoing a very difficult test and was unable to achieve her object, that it would be well and good only if she controls herself and that some other way will have to be evolved when ' that becomes impossible. In exhibit 32 she has stated that though she was happy at Pune she does not know why there is such a dirty atmosphere in the house and it is felt every moment that something will happen. She has also stated in that letter that no work had been started in the house though Shobha 's 'sari ' function is fixed for 13.6.1982 and, therefore, she is out of her mind. The case of the prosecution as regards the alleged occurrence during the night of 11/12.6.1982 is thus: on 11 6 1982 at about 10.30 p.m. Manju accompanied by Anuradha, (P.W. 35) and 179 three children of the latter came to the Taksheela Apartments by an auto rickshaw. The night watchman of the Takshasheela Apartments, kerba (P.W. 28) has deposed about this fact. Syed Mohideen, (P.W. 7) an auto rickshaw driver residing in the border of Ganesh Peth and Ravivar Peth in Pune claims to have taken two ladies, three children and a baby by his auto rickshaw at about 11 p.m. on that day to Mukund Nagar. He has identified the photo of Manju published in a newspaper two or three days later as that of one of the two ladies who travelled by his auto rickshaw as aforesaid. The second accused had already gone to the flat in the Takshasheela Apartments. The appellant reached the flat about 15 minutes later by a scooter, whom the night watchman (P.W. 28) remarked that he was coming rather late he told P.W. 28 that it was because he had a meeting. After the appellant reached the flat he and Manju retired to their bed room while the second accused and P.W. 35 retired to their 'section Thereafter the appellant came out of his bed room at about 2 a.m. on 12.6.1982 and went to the second accused and both of them went out of that flat by scooters soon afterwards. The appellant proceeded to Ravivar Peth and called his father while the second accused went to call Dr. Uttam chand Lodha. (P.W. 24) who lives about one and a half kilo metres away from the Takshasheela Apartments without seeking the help of Dr. Anjali Kelkar,(P.W. 26) and her husband Dr. Shrikant Kelkar (P.W. 27) who lived close by in the same Takshasheela Apartments. P.W. 24 reached the appellant 's flat at about 2.30 a.m. and found Manju dead, with rigor motis having already set in and no external mark showing the cause of death. He, however, opined that it may be a case of unnatural death and suggested that the police may be informed. When Birdhichand who had arrived at the flat by then advised that some other doctor may be called as he was not satisfied with the opinion of P.W 24 suggested that Dr. Anil Gandhi, P.W 25 may be called if so desired. Thereafter, P.W. 24 and the third concerned who had come with Birdhichand went to call P.W. 25 who lives about 7 kilo metres away from the Takshasheela Apartments. On their way they contacted P.W. 25 over the phone and took him to the appellant 's flat where he examined Manju at about 4 a.m. and pronounced that she was dead. He opined that she might have died three or four hours earlier and stated that there was no external evidence showing the cause of death. He too suggested that the police should be informed to avoid any trouble. 180 The third accused went to Mohan Asava, (P.W. 30) at about 4.30 a.m. on 12.6.1982 and called him to the appellant 's flat after informing him that Manju was dead. P.W. 30, who accompanied the third accused, saw the body of Manju in the flat and left the place after suggesting that the police should be informed. The third accused contacted P.W. 30 over the phone at about 6.30 a.m. and asked him to go and inform the police that Manju had died at 5.30 a.m. P.W. 30 accordingly went to Maharishi Nagar Police Station at about 7 or 7.15 a.m. and informed the Head Constable, (P.W. 31) who thereupon made the entry exhibit 120 to the effect that Manju was found to be dead when the appellant tried to wake her a up at 5.30 a.m on 12.6.1982. P.W. 31 proceeded to the appellant 's flat at about 8 a.m. after informing the Inspector of Police, P.W. 40 telephonically about the suspicious death of Manju. On receipt of information from P.W. 22 by a lightning telephone call at about 6 a.m. on 12.6.1982 that Manju was extremely serious P.W. 2 went from Beed to Pune alongwith his wife P.W. 20 and his son Pradeep and Hiralal Sarda (P.W. 4) by jeep at about 1 P.m. on 12.6.1982. and learnt that Manju was dead. Thereafter P.W.2 went alongwith Hiralal Sarda to the Sasson Hospital where Manju 's body had been sent by the police for autopsy. Dr. Kalikrishnan Banerji, P.W. 33 who conducted autopsy on the body of Manju did not find any external or internal injury. He preserved the viscera, small intestines etc. of Manju and reserved his opinion about the cause of her death. On receipt of the Chemical Examiner 's report exhibit 130 to the effect that Manju 's viscera contained potassium cyanide poison P.W. 33 finally opined that Manju had died due to potassium cyanide poisoning and simultaneous mechanical suffocation. After completing the investigation P. W.40 filed the charge sheet against the appellant and the other two accused on 13.9.1982. The Additional Sessions Judge, Pune tried the appellant for offence under Sec. 302 IPC of murder of Manju by administering potassium cyanide poison or by suffocating her or by both, all the three accused for the offence under Sec. 120 B IPC of conspiring to destroy the evidence of the murder of Manju by giving a false report to the police about the time of her death and the third accused for the offence under Sec. 109 read with Sec. 201 IPC and Sec. 201 IPC for intsigating P.W.30 to give false information to the police and giving false information to P.W. 22 regarding the murder of Manju. 181 The appellant and the other two accused denied the charges framed against them. The appellant denied that he had anything to do with Ujvala (P.W. 37) with whom is alleged to have been in love at the relevant time. He admitted that Manju and P.W. 35 accompanied by some children went to their flat in the Takshasheela Apartments at about 10.30 p.m. on 11.6.1982 but denied that they travelled by any auto rickshaw and stated that they went there by their family 's car driven by the second accused. He denied that he went to the flat about 15 minutes later and stated that he returned to the fiat only at 1.30 or 1.45 a.m. on 12.6 1982 after attending a meeting in the Rajasthan Youth Club. He stated that after changing his clothes he looked at Manju and found something abnormal and became suspicious and then went to the second accused and that there after he went to call his father and uncle while the second accused went to call Dr. Lodha, P.W. 24. The Trial Court found all the three accused guilty as charged and convicted them accordingly and sentenced the appellant to death under s.302 IPC and all the three accused to rigorous imprisonment for two years and a fine of Rs. 2,000 each under s.120 B IPC but did not award any sentence under s.201 read with s.120B The appellant and the other two accused filed appeals against their conviction and the sentences awarded to them. The State filed a criminal revision application for enhancement of the sentence awarded to accused 2 and 3. These appeals, confirmation case and criminal revision application were heard together by the Division Bench of the Bombay High Court, which in a lengthy judgment. (195 pages of our paper book) allowed the appellant 's appeal in part regarding his conviction and sentence under s.120 B IPC but confirmed his conviction and sentence of death awarded under s 302 IPC and allowed the appeal of accused 2 and 3 in full and acquitted them and dismissed the criminal revision application. Hence, the appellant alone has come up before this Court on special leave against his conviction and the sentence of death. I had the benefit of reading the judgment of my learned brother Fazal Ali, J. I agree with his final conclusion that the appeal should succeed. The learned Judges of the High Court have relied upon 17 circumstances for confirming the conviction and sentence of death awarded to the appellant. My learned brother Fazal Ali, J. has rightly rejected every one of those circumstances as not conclusively pointing to the guilt of the appellant, including the 182 circumstance that the appellant was last seen with Manju before her death on the ground that the case of the prosecution based on evidence of Dr. Banerji (P.W. 33) that there was any mechanical suffocation of Manju has been disbelieved by the High Court itself and that some entries in the carbon copy exhibit 134 of P.W. 33 's report sent to the Chemical Examiner had been scored and interpolated after his report exhibit 132 to the Chemical Examiner had left his hands, that the original entry in the postmortem certificate exhibit 134 contained the words 'can be a case of suicidal death ' and, that the explanation of P.W.33. that he wrote the words 'time of death ' twice and not the words 'can be a case of suicidal death ' and, therefore, he scored off one of them is not acceptable at all. Doctors P.W.24 and 25 did not find any external injury on the body of Manju which they saw at about 2.30 and 4.30 a.m. on 12.6.1982. Even P.W.33. did not find any external or internal injury on the body of Manju. In these circumstances, unless the prosecution excludes the possibility of Manju having committed suicide by consuming potassium cyanide poison, as rightly pointed out by my learned brother Fazal Ali, J., (no adverse inference of guilt can be drawn against the appellant from the fact that he was last seen with Manju, he being no other than her own husband who is naturally expected to be with her during nights.) Some of these 17 circumstances cannot, by any stretch of imagination, be held to point to the quilt of the appellant. Circumstance No. 6 is an attempt of the appellant 's father Birdhichand to get the body of Manju cremated before 7 a.m. On 12.6.1982 by expressing such a desire to P.W.30. Circumstance No.9 is arrangement of the dead body of Manju to make it appear that she died a peaceful and natural death. Circumstance No. 11 is absence of an anklet of Manju from her leg. Circumstance No. 12 is the conduct of the appellant in allegedly concealing the anklet in the fold of the chaddar. Circumstance No. 15 is the fact that according to the medical evidence Manju was pregnant by four to six weeks and it would normally dissuade her from committing suicide. With respect to the learned judges of the High Court, in my view, by no stretch of imagination, can any of these circumstances be considered to point to nothing but the guilt of the appellant in a case resting purely on circumstantial evidence. However, since I am unable to persuade myself to agree with my learned brother Fazal Ali, J. on four points, I am writing this separate but concurring judgment, giving my view on those points, namely, (1) ill treatment of Manju by the appellant, (2) intimacy of 183 the appellant with Ujvala (P.W.37), (3) admissibility of Manju 's letters Exs. 30,32 and 33 and the oral evidence of P.Ws. 2,3,5,6 and 20 about the alleged complaints made by Manju against the appellant under section 32 (1) of the Evidence Act and (4) conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the body of Manju. My learned brother Fazal Ali, J. has observed as follows at pages 3 and 96 of his judgment: "On the other hand the plea of the defence was that while there was a strong possibility of Manju having been ill treated and uncared for by her husband and her in laws, being a highly sensitive and impressionate woman, she committed suicide out of sheer depression and frustration arising from an emotional upsurge." (P 3) "On the other hand this circumstance may have prompted her to commit suicide, for if a child was born to her, in view of her ill treatment by her husband and her in laws the child may not get proper upbringing". (P.96) I do not recollect any admission by Mr. Ram Jethmalani, learned counsel for the appellant in the course of his arguments about any cruelty or ill treatment to Manju the part of the appellant or his parents. The evidence of P.W.3 is that during Manju 's second visit to Beed after her marriage with the appellant she found Manju not quite happy and very much afraid of the appellant. The evidence of P.W.5 is that during Manju 's second visit to Beed, Manju complained to her about the appellant returning home late in the night and avoiding to have a talk with her and that Manju told her that she was afraid of the appellant and apprehended danger to her life at his hands. The further evidence of the P.W.5 is that during her third visit to Beed she inferred from Manju 's face a spell of fear. The evidence of P.W.6 is that during Manju 's second visit to Beed, Manju told her that the appellant used to leave the house early in the morning and return late at night under the pretext of work in his factory and that he was even reluctant to talk with her. P.W.6 has stated that during Manju 's third visit to Beed she was extremely uneasy. disturbed and under a spell of fear, that Manju told her the appellant did not relish even her question as to why he was not prepared to have a simple talk with her, and that 184 during her third visit to Beed, Manju expressed her unwillingness to go to Pune when Birdhichand went to Beed on 2.6.1982 for taking her to Pune. To the same effect is the evidence of P.W section 2 and 20 about how Manju looked in spirit and what she stated during her last two visits. My learned brother Fazal Ali, J. has rightly rejected the oral evidence of P.Ws. 2, 3, 5, 6 and 20. He has extracted the relevant portions of the letters Exs. 30, 32 and 33 in his judgment and has observed at page 23 that one thing which may be conspicuously noticed in exhibit 30 is that Manju was prepared to take all the blame on herself rather than incriminating her husband or his rents at page 24 that it was conceded by the learned Additional Solicitor General that the relevant portion of Ex.32 does not refer to any ill treatment of Manju by the appellant or his parents; and at page 30 that it can be easily inferred from exhibit 33 that Manju did not have any serious complaint against the appellant except that she was not getting proper attention which she deserved from him. These three letters do not establish that Manju made any complaint of any ill treatment by the appellant or his parents. In my view, these three letters and the aforesaid oral evidence of P.Ws. 2, 3 5 6 and 20 are inadmissible in evidence under section 32(1) of the Evidence Act for reasons to be given elsewhere in my judgment. Thus there is no acceptable evidence on record to show that either the appellant or his parents ill treat Manju. The High Court also has not found any such ill treatment in its judgment. On the other hand, what has been found by the High Court in para 104 of its judgment is that the appellant treated Manju contemptuously. Even while setting out the case of the prosecution the High Court has stated in para 7 of its judgment that it is alleged that the appellant started giving contemptuous treatment to Manju and in para 20 that the appellant has denied in his statement recorded under s.313 Cr. P.C. that Manju was being treated contemptuously. No question has been put to the appellant in the course of his examination under s.313 Cr. P.C. about any ill treatment of Manju by the appellant or his parents. My learned brother Fazal Ali, J. has referred in pages 97 and 98 of his judgment to this Court 's decisions in Fateh Singh Bhagat Singh vs State of Madhya Pradesh, Shamu Babu Chaugale vs State of Mahararstra and Harijan Megha Jesha vs State of Gujarat(3) and has observed at page 98 of his judgment that circumstance not put to the appellant in his examination under section 313 Cr.PC. have to be completely excluded from consideration in view of those decisions. Therefore, since 185 no question has been put to the appellant in this regard in the course of his examination under s 313 Cr. P.C. even if there is any evidence about any ill treatment of Manju by the appellant or his parents it has to be completely excluded from consideration. I felt it necessary to say this in my judgment since I think that in fairness to the appellant it has to be done. My learned brother Fazal Ali, J. has set out the case of the prosecution in so far as it connects P,W. 37 with the appellant at page 3 of his judgment where he has stated that the positive case of the prosecution is that the appellant was not at all interested in Manju and had illicit intimacy with P.W.37. On this point there is the evidence of P.Ws. 3, 5 and 6. The evidence of P.W.3 is that during her second visit to Beed, Manju informed her that the appellant had a girl friend by name Ujwala Kothari and that he introduced her (Ujvala Kothari) to her and told her that she should learn from Ujvala Kothari about how she should behave with him. The evidence of P.W.5. is that during her second visit to Beed, Manju told her that the appellant had an affair with a girl by name Ujvala Kothari and that she had seen Ujvala 's latter addressed to the appellant and an incomplete letter of the appellant addressed to that girl. No such letters have been produced in evidence. The evidence of P.W.6 is that during her second visit to Beed, Manju told her that the appellant had an affair with a girl by name Ujvala Kothari and also introduced that girl to her in the Pearl Hotel saying that she has complete command over him and that she (Manju) should take lessons from her (Ujvala Kothari) about how she should behave with him. There is no other evidence regarding this alleged illicit intimacy between the appellant and P.W.37. This alleged illicit intimacy is totally denied not only by the appellant but also by P,W.37. The alleged incident in the Pearl Hotel, according to the case of the prosecution took place on 17.3.1982. But there is no reference whatever to any such incident in any of the subsequent three letters of Manju, Exs. 30, 32 and 33, dated 25.4.1982, 8.5.1982 and 8.6.1982 respectively. My learned brother Fazal Ali, J. has rightly rejected the oral evidence not only of P.Ws. 3, 5 and 6 but also of P.Ws.2 and 20 as untrustworthy at page 65 of his judgment. However, at page 68 he has stated that it has been proved to some extent that the appellant had some sort of intimacy with Ujvala Kothari and it had embittered the relationship between the appellant and Manju. In my view, as already stated, the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have told them against the appellant and or his 186 family, and even her letters Exs. 30, 32 and 33 are inadmissible in evidence under s.32(1) of the Evidence Act. Thus, there is absolutely no reliable or admissible evidence on record to show that the appellant had any intimacy with Ujwala (P.W.37). I am, therefore, unable to share the view of my learned brother Fazal Ali, J. that the prosecution has proved to some extent that the appellant had some sort of intimacy with P.W.37 and it had embittered the relationship between the appellant and Manju. I think that I am bound to say this in fairness to not only the appellant but also P.W.37 who, on the date of her examination in the Court, was a 19 years old student and has stated in her evidence that she had known the appellant only as the President of the Rajasthan Youth Club in the year 1979 when she was a member of that Club for about 5 or 6 months in that year. My learned brother Fazal Ali, J. has referred to the oral evidence of P.Ws.2, 3, 5, 6 and 20 about Manju 's alleged complaint against the appellant and or his parents and also to the contents of Manju letters, Exs. 30, 32 and 33. I have mentioned above the gist of that oral evidence and those three letters. My learned brother has held the said oral evidence and those three latters to be. admissible under s.32(1) of the Evidence Act while rejecting the oral evidence to those five witnesses as untrustworthy at pages 64 and 65 of his judgment, mainly on the ground that the oral evidence is quite inconsistent with the spirit and contents of those letters. He appears of have relied upon those three letters for two purposes, namely, rejecting the oral evidence of those five witnesses as untrustworthy and supporting the defence version that it may be a case of suicidal death. In my opinion the oral evidence of those five witnesses about what Manju is alleged to have told them against the appellant and or his parents and the three letters, are inadmissible under section 32(1) of the Evidence Act, which reads thus: "32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances 187 of the transaction which resulted in his death, in cases in which the cause of that person 's death comes into question". The alleged oral statements of Manju to P,Ws. 2, 3, 5, 6 and 20 are said to have been made during her second and third visits to Beed in the end of February 1982 and end of May 1982 respectively before her death during the night of 11/12.6.1982. She had written the letters, Exs. 33, 30 and 32 on 25.4.1982, 8.5.1982 and 8.6.1982 as stated earlier. The oral evidence of these witnesses and these three letters are not as to the cause of Manju 's death or as to any of the circumstances of the transaction which resulted in her death during that night. The position of law relating to the admissibility of evidence under section 32(1) is well settled. It is, therefore, not necessary to refer in detail to the decisions of this Court or of the Privy Council or our High Courts. It would suffice to extract what the learned authors Woodroffe and Amir Ali have stated in their Law of Evidence, fourteenth edition and Ratanlal and Dhirajlal in their Law of Evidence (1982) reprint). Those propositions are based mostly on decisions of courts for which reference has been given at the end. They are these: Woodroffe & Amir Ali 's Law of Evidence, fourteenth edition. Page 937 'Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the test applied to admissible evidence, namely, the oath and cross examination. But where there are special circumstances which give a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second hand source". Page 941 "What is relevant and admissible under clause (1) of this section (Section 32) is the statements actually made by the deceased as to the cause of his death or of the circumstances of the transaction which resulted in his death". Page 945 946 "A statement must be as to the cause of the declarant 's death or as to any of the circumstances of the transaction which resulted in his death i.e. the cause and circumstances of the death and not previous or subsequent transaction, 188 such independent transactions being excluded as not falling within the principle of necessary on which such evidence is received. When a person is not proved to have died as a result of injuries received in the incident in question, his statement cannot be said to be a statement as to the cause of his death or as to any of the circumstances which resulted in his death. ; Where there is nothing to show that the injury to which a statement in the dying declaration relates was the cause of the injured person 's death or that the circumstances under which it was received resulted in his death, the statement is not admissible under this clause". (AIR 25 Bombay 45). Page 947 "Circumstances of the transaction resulting in his death; This clause refers to two kinds of statements: (i) when the statement is made by a person as to the cause of his death or (ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words 'resulted in his death ' do not mean 'caused his death '. The expression 'any of the circumstances of the transaction which resulted in his death ' is wider in scope than the expression 'the cause of his death. The declarant need not actually have been apprehending death." (AIR 1964 M.P. 30). Page 947 "The expression 'circumstances of the transaction ' . occurring in s.32, clause (1) has been a source of perplexity to Courts faced with the question as to what matters are admissible within the meaning of the expression. The decision of their Lordships of the Privy Council in Pukala Narayanaswanmi vs Emperor (LR 66 IA 66) sets the limits of the matters that could legitimately be brought within the purview of that expression. Lord Atkin, who delivered the judgment of the Board, has, however, made it abundantly clear that, except in special circumstances no circumstance could be a circumstance of the transaction if it is not confined to either the time actually occupied by the transaction resulting in death or the sense in which the actual transaction resulting in death took place. The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance 189 permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence. " Page 948 "Circumstances of the transaction ' is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in 'circumstantial evidence ' which includes the evidence of all relevant factors. It is on the other hand narrower than 'res gestae '. Circumstances must have some proximate relation to the actual occurrence, though, as for instance, in the case of prolonged poisoning they may be related to dates at a considerable distance from the date of actual fatal dose". Page 948 "The Supreme Court in the case of Shiv Kumar vs State of U.P. (1966 Criminal Appeal R. (SC) 281) has made similar observations that the circumstances must have some proximate, relation to the actual occurrence. and that general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly to the occasion of death will not be admissible". Page 949 "The clause does not permit the reception in evidence of all such statement of a dead person as may relate to matters having a bearing howsoever remote on the cause or the circumstances of his death. It is confined to only such statements as relate to matters so closely connected with the events which resulted in his death that may be said to relate to circumstances of the transaction which resulted in his death. (LR 66 IA 66). 'Circumstances of the transaction which resulted in his death ' means only such facts or series or facts which have a direct or organic relation to death. Hence statement made by the deceased long before the incident of murder is not admissible". (1974 CLJ (MP) 1200). Law of Evidence by Ratanlal & Dhirajlal (1982 Reprint) "Circumstances of the transaction; General expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death are not admissible" (LR 66 IA 66)(18 Part 234). Page 95 "Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. The condition of the admissibility of the evidence is that the cause of the declarant 's death comes into question. It is not necessary that statement must be made after the transaction has taken place or that the person making it must be near death or that the 'circumstance ' can only include the acts done when and where the death was caused. Dying declarations are admissible under this clause". The alleged oral statements of Manju and what she has stated in her letters, Exs 30, 32 and 33 may relate to matters perhaps having a very remote bearing on the cause or the circumstances of her death. Those circumstances do not have any proximate relation to the actual occurrence resulting in her death due to potassium cyanide poison, though, as for instance in the case of prolonged poisoning they may relate to dates considerably distant from the date of the actual fatal dose. They are general impressions of Manju indicating fear or suspicion. whether of a particular individual or otherwise and not directly related to the occasion of her death. It is not the case of the prosecution that the present case is one of prolonged poisoning. Since it is stated by the learned authors woodroffe and Amir Ali in their tratise at page 947 that the decision of their Lordships of the Privy Council in Pakala Narayanaswami vs Emperor (1) sets the limit of the matters that could legitimately be brought within the purview of the expression 'circumstances of the transaction and that decision is referred to in several other decisions of our courts, it would be necessary to extract the relevant passage in this judgment. The learned Lords have observed at pages 75 and 76 thus: "A variety of questions has been mooted in the Indian courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has 191 taken place, that the person making it must be at any rate near death, that the "circumstances" can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction: general expression indicating fear of suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculapatory of the person accused. "Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "re gestae" Circumstances most have some proximate relation to the actual occurrence: though, as for instance in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose. " I am, therefore of the opinion that the oral evidence of these witnesses, P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have told them against the appellant and or his parents and what the has stated in her letters, Exs. 30 32 and 33, are inadmissible in evidence under s.32(1) of the Evidence Act and cannot be looked into for any purpose. At this stage. it may be stated that Mr. Ram Jethmalani, learned counsel for the appellant submitted that the said oral evidence of those five witnesses is inadmissible under section 32(1) though at first he sought to rely upon the letters, Exs 30, 32 and 33 which seem to lend support to the defence theory that it may be a case of suicide, he ultimately conceded that what applies to the relative oral evidence of P.Ws. 2, 3, 5, 6 and 20 would equally apply to the letters, Exs. 30, 32 and 33 and that they too would be inadmissible 192 in evidence. The Additional Solicitor General who had strongly relied upon the said oral evidence of these five witnesses and the letters, Exs. 30, 32 and 33 at first proceeded in the end of his arguments on the basis that they are inadmissible in evidence. In these circumstances, I am firmly of the opinion that the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have told them against the appellant and or his parents as well as the letters, Exs. 32, 32 and 33 are inadmissible in evidence under section 32(1) of the Evidence Act. About Dr. Banerji (P.W. 33) who conducted autopsy on the body of Manju what my learned brother Fazal Ali, J. has said in his judgment is this: "In column 5 of postmortem notes Dr. Banerjee has clearly written 'can be a case of suicidal death ' which indicates that in the absence of the report of the Chemical Examiner he was of the opinion that it could have been a case of suicide. In his evidence P.W 33 has stated that in exhibit 128 in column No. 5 the contents scored out read 'time since the death ' and since it was repeated in the next line he scored out the words in the second line. Despite persistent cross examination the Doctor appears to have stuck to his stand. It cannot, therefore, be gainsaid that this matter was of vital importance and expected the High Court to have given serious attention to this aspect which goes in favour of the accused. In the original while filling up the said column the Doctor appears to have scored out something. The filled up entry appears thus: 'mouth is closed with tip (something scored out) seen caught between the teeth. But in the carbon copy of the report which was sent to the Chemical Examiner (exhibit 132 he has written 'caught between the teeth ' in ink; but in the original there is something else. This is fortified by the fact that the copy of the report actually sent to the Chemical Examiner does not contain any interpolation against the 'said column where the filled up entry reads 'inside mouth '. These circumstances show that Dr. Banerjee (P.W.33) tried to introduce some additional facts regarding the position of the tongue . This, however, throws a cloud of doubt on the correctness or otherwise of the actual reports written by him and the one that was sent to the Chemical Examiner. It is obvious that in the carbon copy which was retained by the Doctor 193 the entries must have been made after the copy was sent to the Chemical Examiner". I entirely agree with these findings of my learned brother Fazal Ali, J. But I am unable to share his view that these "circumstances are not of much consequence the opinion of the Doctor was that Manju died by forcible administration of potassium cyanide or by the process of mechanical suffocation and that this aspect need not detain the Court any further because the High Court has not accepted the case of mechanical suffocation" and that though a number of comments were made on behalf of the appellant about Dr. Banerji 's integrity and incorrect report he does not find any substance in those contentions subject to what he has stated about him. The fact that the High Court has rejected the case of the prosecution based on Dr. Banerji 's report and evidence that it was also a case of mechanical suffocation is not one that could be taken into consideration as a mitigating circumstance in judging the conduct of the Doctor who had conducted the autopsy in a case of suspicious death. The fact that he had reserved his opinion about the cause of death and had then noted in his report that the tongue was inside the mouth but has interpolated the words 'mouth is closed with tip (something scored out) seen caught between the teeth ' and 'caught between the teeth ' only after receipt of the Chemical Examiner 's report to support the view that it was also a case of mechanial suffocation, is not a mitigating circumstance in favour of P: W. 33 The Doctor had scored out the words 'can be a case of suicidal death ' and has persisted in his reply that he had scored out only the words 'time since the death ' which he claims to have written twice, which explanation has been rightly rejected by my learned brother Fazal Ali. The conduct of the Doctor in making these later inter polations and alterations in the records of the postmortem examination in the case of suspicious death in which the appellant has been sentenced to death by the two courts below, deserves serious condemnation. The Doctor has tampered with material evidence in the case of alleged murder, may be at the instance of somebody else, ignoring the probable consequences of his act. In these circumstances, I am of the opinion that Dr. Banerji (P.W.33) is a person who should not be entrusted with any serious and responsible work such as conducting autopsy in the public interest. In this case the appellant would have gone to gallows on the basis of the evidence of P.W.33 as he would have the 194 court to believe it, and theo ther evidence, if they had been accepted, but they have been rightly discarded by my learned brother Fazal Ali, J. as unworthy of acceptance against the appellant. I agree with my learned brother Fazal Ali, J. that the High Court has clearly misdirected itself on many points in appreciating the evidence and has thus committed a gross error of law. I feel that something has to be stated in the judgment in this case about the way the Investigating officer and the learned Additional Sessions Judge, Pune who had tried the case had gone about a their business. Charge No. 3 is against the third accused for instigating Mohan Asava (P.W. 30) to give false information to the police regarding the offence of murder namely, that the appellant found Manju dead when he tried to wake her up at 5.30 a.m. on 12.6.1982. It is the case of the prosecution itself that P.W.30 informed the police accordingly at 7 or 7.15 a.m. on that day after receipt of telephonic instructions from the third accused at 6.30 a.m. though he had himself seen the dead body of Manju earlier in the appellant 's flat where he was taken by the third accused who had gone to his flat at about 4 or 4.15 a.m. and informed him that Manju was dead, and he (P.W.30) left the appellant 's flat a little later at about 5 or 5.15 a. m. after telling Dr. Lodha (P.W. 34) that he was going to report to the police. Thus, it would appear that the case of the prosecution itself is that P.W. 30 is the principal offender as regards giving false information to the police about the death of Manju. Yet the Investigating officer had not filed any charge sheet against P.W. 30 but has conveniently treated him as a prosecution witness. The Additional Sessions Judge, Pune appears to have exercised no control over the evidence that was tendered in this case and to have been oblivious of the scope of the examination of the accused under. section 313 Cr. P.C. This is reflected by some of the questions put to the appellant. Question No. 24 relates to P.W. 20 not maintaining good health and falling ill now and then. Question No. 25 relates to P.W. 22 being a patient of high blood pressure and having suffered a stroke of paralysis 7 years earlier. Question No. 30 relates to a reception held at Pune on 13.2.1982 in connection with the appellant 's marriage with Manju. Question No. 32 relates to P.W. 6 asking the appellant 's father Birdhichand for permission to take Manju to Beed with her when the party from P.W.2 's side started from Pune for Beed on 14.2.1982. Question No. 115 relates to P.W.30 indulging in criminal acts of rowdyism, tax evasion etc, and being known as a contact man of the police. section 313 Cr. P. C. 195 lays down that in every inquiry or trial for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him the Court may at any stage, without previously warning the accused, put such questions to him as the court considers necessary and shall, after the witnesses for the prosecution have been examined and before he is called for his defence, question him generally on the case. It is clear that the evidence on the basis of which the above questions have been put to the appellant is wholly irrelevant and that those questions do not relate to any circumstance appearing in the evidence against the appellant. The learned Additional Sessions Judge was bound to exercise control over the evidence being tendered in his court and to know the scope of the examination of the accused under section 313 Cr. P. C. In the end, as I said earlier, I agree with my learned brother Fazal Ali, J. that the appeal has to be allowed. Accordingly I allow the appeal and set aside the conviction and sentence awarded to the appellant and direct him to be set at liberty forthwith. SABYASACHI MUKHARJI, J. I have the advantage of having read the judgments prepared by my learned brothers Fazal Ali, J. and Varadarajan, J. I agree with the order proposed that the appeal should be allowed and the judgments of the courts below should be set aside and the appellant Sharad Birdhichand Sarda be acquitted of the charges framed against him and he should be released forth with. I do so with some hesitation and good deal of anxiety, because that would be interfering with the concurrent findings by two courts below on a pure appreciation of facts. The facts and circumstances have been exhaustively and very minutely detailed in the judgment of my learned Brother Fazal Ali, J. Those have also been set out to certain extent by my Brother Varadarajan, J. It will therefore serve no useful purpose to repeat these here. It is necessary, however, for me to make the following observations. It is a case of circumstantial evidence. It is also undisputed that the deceased died of potassium cyanide on the night of 11th and 12th June. 13th June was the date fixed for the betrothal of the sister of the accused. There is no evidence that the accused was in any way hostile or inamicable towards his sister. The deceased had a very sensitive mind and occasionally had suffered from mental depression partly due to the fact of adjusting in a new family and partly due to her peculiar mental make up but mainly perhaps due to the family set up of the accused husband. There is no direct 196 evidence of administering poison. There is no evidence either way that either the deceased or the accused had in her or his possession any potassium cyanide. In these circumstances my learned brothers, in view of the entire evidence and the letters and other circumstances, have come to the conclusion that the guilt of the accused has not proved beyond all reasonable doubt. As I have mentioned before, I have read the two judgments by my two learned brothers and on some points namely, four points mentioned in the judgment prepared by my Brother Varadarajan. J., he has expressed views different from those expressed by Fazal Ali, J. and these are: (1) ill treatment of Manju by the appellant; (2) intimacy of the appellant with Ujwala (P.W.37); (3) admissibility of Manju 's letters Exs. 30, 32 and 33 and the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about the alleged complaints made by Manju against the appellant under s.32(1) of the Evidence Act; and (4) conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the body of Manju. On the three points, namely ill treatment of Manju by the appellant, intimacy of the appellant with Ujwala (P.W.37) and the conduct of Dr. Banerji (P.W.33) who had conducted autopsy on the body of Manju, I would prefer the views expressed by my learned brother Fazal Ali, J. On the question of admissibility of Manju 's letters Exs. 30, 32 and 33 and the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about the alleged complaints made by Manju against the accused under section 32(1) of the Evidence Act, my learned brother Fazal Ali, J. has observed about section 32(1) as follows: "The test of proximity cannot be too literally construed and practically reduced to a cut end dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama 197 would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3 4 months the statement may be admissible under s.32." (Emphasis by me). I would, however, like to state here that this approach should be taken with great deal of caution and care and though I respectfully agree with Fazal Ali, J. that the test of proximity cannot and should not be too literally construed and be reduced practically to a cut and dried formula of universal application but it must be emphasised that whenever it is extended beyond the immediate, it should be the exception and must be done with very great caution and care. As a general proposition, it cannot be laid down for all purposes that for instance where a death takes place within a short time of marriage and the distance of time is not spread over three or four months, the statement would be admissible under section 32 of the Evidence Act. This is always not so and cannot be so. In very exceptional circumstances like the circumstances in the present case such statements my be admissible and that too not for proving the positive fact but as an indication of a negative fact, namely raising some doubt about the guilt of the accused as in this case. For the purpose of expressing my respectful concurrence with the views of Justice Fazal Ali, it is not necessary for me to agree and I do not do so with all the detailed inferences that my learned brother has chosen to draw in respect of the several matters from the exhibits in this case. I am also with respect not prepared to draw all the inferences that my learned brother has chosen to draw in the paragraph beginning with the expression "the careful perusal of this letter revealed the following features". This my learned brother was speaking in respect of exhibit 33. I however, respectfully agree with my learned brother when he says that a close analysis and ading of the letter namely exhibit 33 clearly indicates: 198 (a) that the deceased was extremely depressed. (b) that there was a clear tendency resulting from her psychotic nature to end her life or commit suicide. Similarly I have some hesitation about the English rendering of exhibit 32 which is letter dated 8th June, 1982 which has been set out by my learned brother and which has been set out in his judgment which contains the expression "I do not know why there is such a dirty atmosphere in the house?" As the original letter was read out in Court and we had the advantage of that, I am inclined to take the view that the correct and the more expressive expression would be "I do not know why there is such a foul atmosphere in the house?" Read in that light and in the context of other factors, this letter causes some anxiety. It the deceased was sensing foul atmosphere, why was it? But this again is only a doubt. It does not prove the guilt of the accused. In view of the fact that this is a case of circumstantial evidence and further in view of the fact that two views are possible on the evidence on record, one pointing to the guilt of the accused and the other his innocence, the accused is entitled to have the benefit of one which is favourable to him. In that view of the matter I agree with my learned brothers that the guilt of the accused has not been proved beyond all reasonable doubt. In the premises as indicated before, I agree with the order proposed. S.R. Appeal allowed.

The respondent, Secretary of the workers union of a construction company, D.W. 1, Vice President of the Union, the deceased and P.Ws. 5 and 7, officers of the company and P.W. 6, standing counsel of the company were all coming out of the office of an industrial tribunal after filing their written statements in a dispute raised by the workers. The prosecution case was that at the main gate of the tribunal 's building the respondent suddenly star ted firing from a pistol and shot dead the deceased. As firing was going on, a telephonic message conveying the fact that gunshots were being fired was sent to the nearby police station on receipt of the telephonic message the police arrived at the spot, seized the pistol and took the respondent and some of the witnesses to the police station where a formal FIR was registered. The Session Judge convicted the accused under section 302 IPC and section 25 (1) (a) of Indian Arms Act and sentenced him to life imprisonment and one years ' rigorous imprisonment respectively. On appeal the High Court reversed the judgment of the Sessions Judge. The High Court observed that if P.W. 7 had given the telephonic message, as stated by D.W. 1. he would have mentioned the name of the assailant because he was a full fledged eye witness but since his name had not been mentioned it was the strongest Possible circumstance to discredit the prosecution case. Hence this appeal. Allowing the appeal, ^ HELD: Normally this Court does not interfere against the judgment of 2 the High Court purely on appreciation of evidence. But this Court would interfere with the decision of the High Court if there appear to be very special circumstances which have been either overlooked or not considered by the High Court or the High Court does not appear to have examined the intrinsic merits of the evidence of the witnesses but has proceeded to acquit the accused on general grounds which are wholly untenable. [5B C] A cryptic information on telephone has been held by this Court to be of no value at all. The mere fact that the information was the first in point of time does not by itself clothe it with the character of first information report. Tapinder Singh vs State of Punjab, ; , referred to In the instant case the telephonic message was an extremely cryptic one and could not be regarded as a FIR in any sense of the term. The High Court has applied two different standards to assess the evidence of the prosecution and that of the defence. While the High Court accepts the uncorroborated evidence of D.W. 1, who is as much interested in the dispute as the deceased, if not more, being Vice President of the Union and also in possession of the brief case of the respondent, yet it disbelieves the evidence of P.Ws. 5 and 7 mainly on the ground that they were highly interested. [7H, 8A B] The High Court completely lost sight of two important facts (1) that P.Ws. 5 and 7 were high officers of the company and were not likely to depose falsely on a matter like this, and (2) that r. W. 6, who was the standing counsel of the company and other labour cases for more than 3 decades, fully corroborates the evidence of P.Ws. 5 and 7. We have examined the evidence of P.Ws. 5 and 7 with very great care and caution but we are unable to find any discrepancy or defect in their evidence so as to lead any court to reject the same. [8E F] The finding of the High Court that it is difficult to believe that after the respondent threw the pistol he continued to remain at the spot and did not make any attempt to escape is also most unrealistic. There is clear evidence of P.Ws. 5, 6 and 7 that after the respondent threw down the pistol he was surrounded by the three witnesses so that he could not escape. The High Court has failed to consider this important aspect of the matter. Moreover, if a person commits a cold blooded murder in the premises of a court which is bound to be full of other litigants also, he cannot think of escaping and is bound to be caught by some one or the other. [9A C] Relying on the evidence of D.W. 1, the conclusion reached by the High Court that it is extremely doubtful that the witnesses could see the incident from inside the court room as there was no door or window through which 3 the incident could be seen is purely speculative and against the weight of evidence on record. The evidence of D.W. 1, who was a highly interested witness, should not have been acted upon in the peculiar facts and circumstances of this case unless corroborated by independent evidence. [9D; F G] The High Court seems to have completely overlooked the fact that there was no reason for the three eye witnesses, one of whom was a standing counsel for about 30 years, to have falsely implicated the respondent merely because he was Secretary of the Union. The consistent course of conduct of the respondent speaks volumes against his innocence. He was caught red handed at the spot and was surrounded by the witnesses so that he could not escape, and the police arrived within fifteen minutes of the occurrence and took him to the police station. [9H; 10A]

iminal Appeal No. 26 of 1964. Appeal from the judgment and order dated November 20, 1963 of the Mysore High Court in Criminal Appeal No. 49 of 1963. B. R. L. Iyengar and A. G. Ratnaparkhi for the appellant. A. K. Sen, D. R. Prem, R. H. Dhebar and B. R. G. K. Achar, for the respondent. Niren De, Additional Solicitor General and B. R. G. K. Achar, for the intervener. The Judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Mysore High Court. The appellant was prosecuted under section 167 (81) of the Sea Customs Act (No. 8 of 1878) read with section 9 of the Land Customs Act (No. 19 of 1924). The appellant lives in a village which is close to Goa. The incident out of which the present appeal has arisen took place on November 27, 1960 when Goa was not a part of India but was Portuguese territory. The Deputy Superintendent of Customs, Goa Frontier Division, Belgaum received information that contraband goods would be found in the house of the appellant. Consequently he raided the house in the company of three panchas. The appellant was not present in the house when the raid took place, but his mother and sisterin law were there. After necessary formalities the house was searched and a big steel trunk, a cane box and another steel trunk were taken down from the loft in the kitchen. On opening, a belt, with four pouches stitched to it, was found in the big steel trunk. Inside the pouches, four gold bars with foreign marks and labels of Goa Customs authorities were found. Besides these, a large sum of money and three small cut pieces of gold were also found in the box. In the other two boxes also various sums of money in currency notes were found. The weight of the gold bars was 343 tolas. On November 30, 1960, the appellant was arrested and inter rogated by the Deputy Superintendent of Customs and Excise. The answers given by him were reduced in writing and his signature was taken on the writing after it had been read over to him. During this interrogation, the appellant admitted that the four gold bars had been given to him on November 27, 1960 in the moming by one Vittal Morajkar of Goa so that he might deliver them back to Morajkar on the motor stand at Belgaum or near there, and be had kept them in his house. As the gold was foreign gold 700 and as under the notification under section 8(1) of the Foreign Exchange Regulation Act, 1947, import of gold into India had been for,bidden except with the general or special permission of the Reserve Bank of India, the appellant was prosecuted on a complaint filed by the Assistant Collector of Central Excise and Land Customs, Goa Frontier Division, Belgaum. The Magistrate convicted the appellant and sentenced him to imprisonment and fine and also ordered confiscation of the four gold bars. On appeal to the Sessions Judge, the appellant was acquitted relying on the decision of the Calcutta High Court in Sitaram Agarwala vs State(1). Then followed an appeal by the State to the High Court. The High Court disagreed with the view takeu by the Calcutta High Court in Sitaram Agarwal 's case(1) and held that even a person like the appellant who might have no direct concern with the import of gold in any way was liable under section 167(81) of the Sea Customs Act. The High Court then ,considered the evidence and relying on the statement made by the appellant to the Deputy Superintendent of Customs and Excise and also on the other evidence produced in the case held that the appellant was guilty. In consequence, the acquittal of the appellant was set aside and the order of conviction and sentence passed by the Magistrate was restored. The appellant then applied to the High Court for a certificate to appeal to this Court, and as two questions of law of general importance arose in this case, the High Court granted the certificate. The two questions were : (1) whether the view taken by the High Court differing from the view taken by the Calcutta High Court in Sitaram Agarwal 's case(1) with respect to the interpretation of section 167(81) was correct, and (ii) whether the statement made by the appellant to the Deputy Superintendent of Customs and Excise was admissible in evidence in view of section 25 of the Indian Evidence Act (No. 1 of 1872). These are the two questions which have been argued before us on behalf ,of the appellant in the present appeal. So far as the first question is concerned, namely, the interpretation of section 167(81) of the Sea Customs Act, the matter is now settled by the decision of this Court in Sachidananda 'Bannerjee, Assistant Collector of Customs vs Sitaram Agarwal and another(2). This Court has held therein that the interpretation put by the Calcutta High Court in the case of Sitaram Agarwala(1) is not correct and that section 167(81) of the Sea Customs Act can also take in persons who may not be concerned the actual import of prohibited goods. The view taken by the Mysore High Court is in accordance with the view taken by this Court in that appeal and in view of that,, learned counsel for the appellant has admitted (1) (2) 701 that the appellant would be guilty within the meaning of section 167 (81) of the Sea Customs Act. This leaves only the second question, and it has been urged on behalf of the appellant that a Central Excise Officer under the Central Excises and Salt Act, No. I of 1944 (hereinafter referred to as the Act) is a police officer within the meaning of those words in section 25 of the Evidence Act. Therefore even though the Deputy Superintendent of Customs and Central Excises may have acted under the powers conferred on him by the Sea Customs Act, he was still a police officer, and the statement made to him by the appellant on November 30, 1960 which is in the nature of a confession would be inadmissible under section 25 of the Evidence Act. It may be added that the High Court had in this connection relied on the judgment of this Court in the State of Punjab vs Barkat Ram( ) where it had been held by majority that a Customs. Officer under the Sea Customs Act was not a police officer within the meaning of section 25 of the Evidence Act. The appellant however relies on a later decision of this Court in Raja Ram Jaiswal vs State of Bihar(2) where by majority it was held that an excise officer under the Bihar and Orissa Excise Act (No. 2 of 1915) was a police officer within the meaning of section 25 of the Evidence Act. There has been difference of opinion among the High Courts in India as to the meaning of the words "police officer" used in section 25 of the Evidence Act. One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so called or not would be police officers within the meaning of those words if they have all the powers of a police officer with respect to investigation of offences with which they are concerned. The leading case in support of this view is Nanoo, Sheikh Ahmed vs Emperor(3). The other view which may be called the narrow view is that the words "police officer" in section 25 of the Evidence Act mean a police officer properly so called and do not include officers of other departments of government who may be charged with the duty to investigate under special Acts special crimes thereunder like excise offences or customs offences, and so on. The leading case in support of this view is Radha Kishun Marwari vs King Emperor(4). The other High Courts have followed one view or the other, the majority being in favour of the view taken by the Bombay High Court. It is submitted on behalf 'of the appellant that the view taken by the Bombay High Court in Nanoo Sheikh Ahmed(3) is the correct view and that the view of the Patna High Court in Radha Kishun Marwari(4) is not correct. On the other hand it has been urged on behalf of the State that the view taken by the Patna High (1) ; (2) [1964]2 S.C.R. 752. (3) Bom. (4) patna 46. C.1./66 13 702 Court in Radha Kishun Marwari(1) is the correct one. Prima facie there is in our opinion much to be said for the narrow view taken by the Patna High Court. But as we have come to the conclusion that even in the broad view, a Central Excise Officer under the Act is not a police officer, it is unnecessary to express a final opinion on the two views on the meaning of the words "police officer" in section 25 of the Evidence Act. We shall proceed on the assumption that the broad view ' may be accepted and that requires an examination of the various provisions of the Act to which we turn now. The main purpose of the Act is to levy and collect excise duties and Central Excise Officers have been appointed thereunder for this main purpose. In order that they may carry out their duties in this behalf, powers have been conferred on them to see that duty is not evaded and persons guilty of evasion of duty are brought to book. Section 9 of the Act provides for punishment which may extend to imprisonment upto 6 months or to find upto Rs. 2,000 or both where a person (a) contravenes any of the provisions of a notification issued under section 6 or of section 8 or of a rule made under cl. (iii) of sub section (2) of section 37; (b) evades the payment of any duty payable under the Act; (c) fails to supply any information which he is required by rules made under the Act to supply or supplies false information; and (d) attempts to commit or abets the commission of any of the offences mentioned in cls. (a) and (b) above. Under section 13 of the Act, any Central Excise Officer duly empowered by the Central Government in this behalf may arrest any person whom he has reason to. believe to be liable to punishment under the Act. Section 18 lays down that all searches made under the Act or any rules made thereunder and all arrests made under the Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 relating respectively to searches and arrests made under that Code. Section 19 lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer in charge of the nearest police station. These sections clearly show that the powers of arrest and search conferred on Central Excise Officers are really in support of their main function of levy and collection of duty on excisable goods. Strong reliance has however been placed on behalf of the appellant on section 21 of the Act, the material part of which runs thus: "21. (1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so (1) Patna 46. 703 arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. (2)For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case; Provided that. . . . . . " It is urged that under sub section (2) of section 21 a Central Excise Officer under the Act has all the powers of an officer in charge of a police station under chapter XIV of the Code of Criminal Procedure and therefore he must be deemed to be a police officer within the meaning of those words in section 25 of the Evidence Act. It is true that sub section (2) confers on the Central Excise Officer under the Act the same powers as an officer in charge of a police station has when investigating a cognizable case; but this power is conferred for the purpose of sub section (1) which gives power to a Central Excise Officer to whom any arrested person is forwarded to inquire into the charge against him. Thus under section 21 it is the duty of the Central Excise Officer to whom an arrested person is forwarded to inquire into the charge made against such person. Further under proviso (a) to sub section (2)of section 21 if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such. Magistrate. It does not however appear that a Central Excise Officer under the Act has power to submit a charge sheet under section 173 of the Code of Criminal Procedure. Under section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, of (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. A police officer for purposes of cl. (b) above can in our opinion only be a police officer properly so called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise Officer will have to make a complaint under cl. (a) above if he wants the Magistrate to take cognizance of an offence, for "ample, under section 9 of the Act. Thus though under sub section (2) of section 21 of the Central Excise Officer under the Act has the powers of an officer incharge of a police station when investigating a cognizable case, that is for the purpose of his inquiry under sub section (1) of section 21. Section 21 is in terms different fro section 78(3) of the Bihar and Orissa Excise Act,1915 which came to be considered in Raja Ram Jaiswal 's 704 case(1) and which provided in terms that "for the purposes of section 156 of the Code of Criminal Procedure, 1898, the area to which an excise officer empowered under section 77, sub section (2) , is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer in charge of such station". It cannot therefore be said that the provision in section 21 is on par with the provision in section 78(3) of the Bihar and Orissa Excise Act. All that section 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officerin charge of a police station when investigating a cognizable case. But even so it appears that these powers do not include the power to submit a charge sheet under section 173 of the Code of Criminal Procedure, for unlike the Bihar and Orissa Excise Act, the Central Excise Officer is not deemed to be an officer in charge of a police station. It has been urged before us that if we consider section 21 in the setting of section 14 of the Act, it would become clear that the enquiry contemplated under section 21(1) is in substance different from investigation pure and simple into an offence under the Code of Criminal Procedure. It is not necessary to decide whether the enquiry under section 14 must also include enquiry mentioned in section 21 of the Act. Apart from this argument we are of the opinion that mere conferment of powers of investigation into criminal offences under section 9 of the Act does not make the Central Excise Officer, a police officer even in the broader view mentioned above. Otherwise any person entrusted with investigation under section 202 of the Code of Criminal Procedure would become a police officer. In any case unlike the provisions of section 78(3) of the Bihar and Orissa Excise Act, 1915, section 21 (2) of the Act does not say that the Central Excise Officer shall be deemed to be an officer in charge of a police station and the area under his charge shall be deemed to be a police station. All that section 21 does is to give him certain powers to aid him in his enquiry. In these circumstances we are of opinion that even though the Central Excise Officer may have when making enquiries for purposes of the Act powers which an officer in charge of a police station has when investigating a cognizable offence, he does not thereby become a police officer even if we give the broader meaning to those words in section 25 of the Evidence Act. The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915, the appellant cannot take advantage of the decision of this Court in Raja Ram Jaiswals ' case(1) taking even the broader view of the words "police officer" in section 25 of the Evidence Act. We are of opinion that the present case is more in accord with the case of Barkat Ram(2). In this view, (1) ; , (2) ; 705 of the matter the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by section 25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of section 24 of the Evidence Act. As to that it was urged on behalf of the appellant in the High Court that the confessional statement was obtained by threats. This was not accepted by the High Court and therefore section 24 of the Evidence Act has no application in the present case. It is not disputed that if this statement is admissible, the conviction of the appellant is correct. As we have held that a Central Excise Officer is not a police officer within the meaning of those words in section 25 of the Evidence Act the appellant 's statement is admissible. It is not ruled out by anything in section 24 of the Evidence Act and so the appellant 's conviction is correct and the appeal must be dismissed. We hereby dismiss the appeal. Appeal dismissed.

By notifications issued in October 1958, May 1959 and April 1960, the Mysore Public Service Commission invited applications for the recruitment of 80 probationary Assistant Engineers . The qualifications, pay, age limit and other conditions for eligibility were prescribed by these notifications. On March 1, 1960, it was notified by the Governor, that for direct recruitment to appointments and posts in the services of the State, reservations for Scheduled Castes and Scheduled Tribes would be 15% and 3%; and the reservation for other backward classes would be 25%. Thereafter, in October and November 1960, the Mysore Public Service Commission interviewed the candidates and sent a list to the Government of 80 candidates selected by them. On December 3, 1960, the Government of Mysore sanctioned the establishment of the State Service Cadre in respect of the Mysore Public Works Engineering Department Service. On the same date, in exercise of the powers conferred by the proviso to article 309 the Governor made the rules called the Mysore Public Service Engineering Department Service (Recruitment) Rules 1960. These Rules prescribed in respect of each category of specified posts the methods of recruitment, whereby only 40% of the appointment could be made after an interview and an oral test and also prescribed the minimum qualifications, age limits, etc. for Assistant Engineers which were somewhat different from those prescribed in the earlier Notifications of the Mysore Public Service Commission relating to the recruitment of 80 Assistant Engineers. On October 23, 1961 the Governor made certain amendments to the 1960 Rules the effect of which was to make those rules retrospective with effect from March 1, 1958 and also, to waive the requirements of the rules relating to the percentages for direct recruitment, educational qualifications, and age requirements, etc. in respect of direct recruitment of Assistant Engineers for the first time. Thereafter, on October 31, 1961, the Governor appointed 88 candidates as probationary Assistant Engineers. These appointments were challenged in 16 Writ Petitions filed in the High Court on the grounds inter alia, that (1) in view of Rule 3 of the Mysore State Civil Services 683 (General Recruitment) Rules, 1957, which provided that the method of recruitment and qualifications for each State Civil Service shall be set forth in the rules of recruitment of such service specially made in that behalf, the Government could not recruit the Assistant Engineers without framing the necessary rules; (ii) the State Government could not make rules retrospectively unless it had express powers to do so under the relevant statute; (iii) the appointments which were made on October 31, 1951 had to be made in accordance with the 1960 Rules but in fact were not so made; (iv) some of the appointments were made mala fide. These writ petitions were allowed by the High Court. On appeal to this Court, HELD : The appointments of the 88 Assistant Engineers were validly made in the exercise of the executive power of the State under article 162 of the Constitution. It is not obligatory under the proviso to article 309 to make rules of recruitment etc. before a service can be constituted or a post created or filled. The State Government has executive power in relation to all matters with respect to which the Legislature of the State hag power to make laws. It follows from this that the State Government will have executive power in respect of List 11 Entry 41 "State Public Services". [686 C E] In this background, Rule 3 of the General Recruitment Rules of 1957 cannot be interpreted as suspending the executive power of the State till rules of recruitment of a service are specially made in that behalf. [686 G] Ram Jawaya Kapur vs State of Punjab, and T. Cajee vs K. Jormanic Siem, ; , referred to. Even if it were to be assumed that the rules purported to be made by the State Government had no retrospective validity the position would be that there were no statutory rules governing the appointment of the 88 Assistant Engineers; but that could not prevent the State Government from making valid appointments in the exercise of its executive powers. [694 P] It cannot be said that the appointments made in October 1960 had to be under statutory rules made on December 3, 1960. It took about two years for the Public Service Commission to publish notifications, interview candidates and recommend names for appoinment. The whole procedure having been followed, it could not have been the intention of the Government, while framing the rules, to cover appointments made in pursuance of the recommendations of the Public Service Commission made in November 1960 after interviewing the candidates in October 1960. [694 G 695 B] On the facts, no mala fide or collateral object had been proved. The Mysore Public Service Commission (Function) Rules, 1957 are not statutory rules made under article 309. First. the rules do not expressly say so; and secondly, they deal with the functions of the Commission rather than with the rules regarding recruitment to services or posts. [685 E]

ION: Civil Appeal No. 914 of 1987. From the Judgment and Order dated 22.8.1984 of the Kerala High Court in O.P. No. 6806 of 1984. Abdul Khader and E.M.S. Anam for the Appellant. 1081 G. Vishwanath Iyer, N. Sudhakaran for the Respondent. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. A tea estate of 100 acres with some buildings, machinery and equipments was given as security to the Kerala Financial Corporation ("The Corporation") against the loan taken by the appellant. A part of the loan remained outstanding and the appellant could not clear it. The Corporation thereupon filed O.A. No. 8/64 before the District Court of Kottayam for recovery of the arrears and obtained decree for an amount of Rs.1,20,000. In execution of the decree, the said tea estate was brought for sale by court auction. On November 5, 1969, the auction sale was held. There was no bidder. So the Corporation itself had to purchase the property for about Rs.1,65,000. There was long standing dispute between the workmen of the estate and the previous management relating to payment of their wages. The Corporation therefore could not take possession of the estate. An extent of 85 acres out of 100 acres of the estate was in possession of the workmen as per settlement arrived at between the Labour Commissioner and the District Collector. The workmen used to collect the income therefrom towards their wages. This arrangement continued for about thirteen years. On January 7, 1982, the Corporation got possession of the entire estate. The Corporation wanted to recover its amount. It was not interested in the property. It therefore, invited tenders for the sale of the estate. On March 19, 1982, a tender notification was published in dailies like Malayala Manorama, Mathrubhoomi and Deepika newspapers. In response to the notification, the daughter in law of the appellant was the only tenderer. She offered Rs.5,10,505. The Corporation accepted the tender. It was subsequently found that the daughter in law was no better than the appellant. She also could not pay any amount. On January 18, 1983, the Corporation again invited tenders for the sale of the property. The notification was published in the said newspapers as it was done earlier. This time, the Corporation received these tenders: (i) T.M. Hassan Rawther (Appellant before us) for Rs. six lakhs; (ii) P.M. Jacob for Rs.4,15,550 and (iii) K.K. Mathew for Rs.2,07,451. Since the appellant submitted the highest offer, the Corporation naturally had to accept it. On March 2, 1983, the acceptance was communicated to the appellant. He must have thanked his stars for getting back his family property which was so dear to him or which was according to him so valuable. But there was no such anxiety shown. He did not pay anthing except the earnest money of Rs.40,000. 1082 The Corporation, however, extended the time for payment again and again. The Corporation also gave him instalments for payment of the balance price. All the efforts of the Corporation failed to induce the appellant. The Corporation wanted to get back its money. It was not interested in retaining the property. So it negotiated with P.M. Jacob who had submitted his tender alongwith the appellant in response to the notification dated January 18, 1983. He had then offered Rs.4,16,550. His tender was the next best. After negotiation, he enhanced the offer to Rs. four and a half lakhs. The Corporation accepted it and decided to sell the property to P.M. Jacob. The property however, was sold to M/s. Gumraj Plantations at the request of P.M. Jacob. M/s. Gumraj Plantations is a partnership firm in which P.M. Jacob is one of the partners. The appellant who could not purchase the said property by any means filed suit O.S. No. 229/84 before the Munsif Court Thidupuzha to restrain the Corporation from selling the property. He could not get relief in the suit since by then the sale deed was executed in favour of M/s. Gumraj Plantations. Subsequently, he moved the High Court of Kerala complaining that the Corporation while selling the property for Rs. four and a half lakhs to M/s. Gumraj Plantations, had deviated from the normal practice of inviting tenders from the public. He contended that the Corporation being a public authority was bound to act reasonably and fairly and it ought not to have arbitrarily selected the purchaser. The High Court found no substance in those submissions. The High Court observed: "The submission made by the petitioner 's counsel is that the decision to sell the property by private negotiations is arbitrary and is therefore liable to be interfered with by this court. This is clearly a case where in execution proceedings the decreeholder has purchased the property and thereafter the property was sold in public auction to the petitioner, who purchased it for Rs. six lakhs but failed to pay the sale amount in spite of the fact that this court and afterwards the corporation had shown great indulgence towards the petitioner. This is not at all a fit case for interference under article 226 of the Constitution." Being aggrieved by the judgment of the High Court, the appellant has preferred the present appeal. On May 18, 1985, this Court 1083 while entertaining the appeal issued notice limited to the question whether the sale of the property should be made by general auction. This Court further directed that in any event, the appellant will not be allowed to participate in the auction. Very interesting turn of events. The appellant who miserably failed to secure the property for himself is now interested in securing the best price for the Corporation. He says that this is a public interest litigation. His case is that the Corporation in all fairness must dispose of the property by public auction. It could not have bargained with P.M. Jacob and sold the property to M/s. Gumraj Plantations. Before the High Court, the appellant attacked the sale also on the ground that it was actuated by extraneous considerations. He alleged that the corporation had succumbed to the pressure of some influential persons for the sale of the property in favour of M/s. Gumraj Plantations. The appellant made these allegations but did not substantiate it. He did not give the names of influential persons who had brought pressure on the Corporation. He did not even state as to how the Corporation officials had shown undue interest with P.M. Jacob or with the other partners of M/s. Gumraj Plantations for sale of the property. It is not proper to make such light hearted and vague allegations against the statutory authorities. These allegations, in our opinion, are uncharitable and unfounded. The only question that arises for consideration is whether on the facts and in the circumstances, the Corporation was not justified in selling the property by private negotiations in favour of M/s. Gumraj Plantations at the instance of P.M. Jacob. It is needless to state that the Government or public authorities should make all attempts to obtain the best available price while disposing of public properties. They should not generally enter into private arrangements for the purpose. These principles may be taken as well established by the following decisions of this Court: (i) K.N. Guruswamy vs The State of Mysore and others; , at 312; (ii) Mohinder Singh Gill & Anr. vs The Chief Election Commissioner, New Delhi and others, ; (iii) R.D. Shetty vs The International Airport Authority of India and Ors., ; ; (iv) Kasturi Lal Lakshmi Reddy vs State of Jammu and Kashmir and Anr., ; ; (v) Fertilizer Corporation Kamagar Union vs Union of India, ; ; (vi) Ram and Shyam Company vs State of Haryana and Ors. [1985] Supp. SCR 541 and (vii) Shri Sachidanand Pandey vs State of W.B. ; 1084 In R.D. Shetty vs The International Airport Authority of India and Ors. ; at 1041 Bhagwati, J. speaking for the Court observed: "Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweetwill, but its action must be in conformity with some principle which meets the test of reason and relevance. This rule also flows directly from the doctrine of equality embodied in Art 14. It is now well settled as a result of the decisions of this Court in E.P. Rayappa vs State of Tamil Nadu and Maneka Gandhi vs Union of India that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non discriminatory: it must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non arbitrariness is protected by article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non discriminatory. " In Kasturi Lal Lakshmi Reddy vs State of J & K, ; at 1355 Bhagwati, J. again speaking for the Court reiterated what he said earlier to R.D. Shetty case. The learned Judge went on to state: 1085 "Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated. If the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be liable to be tested for its validity on the touch stone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid. " The learned Judge continued (at p. 1357): "But one basic principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the Governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest because as we said above, there are a large number of policy considerations which must necessarily weigh with the Government in taking action and therefore, the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law. " In Fertilizer Corporation case ; at 350 this Court speaking through Chandrachud, C.J., observed: "We want to make it clear that we do not doubt the bona fides of the authorities, but as far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the Government has 1086 put all its cards on the table. In the instant case, the officers who were concerned with the sale have inevitably, though unjustifiably attracted the criticism that during the course of negotiations the original bid was reduced without a justifying cause. We had willy nilly to spend quite some valuable time in satisfying ourselves that the reduction in the price was a necessary and fair consequence of the reduction in the quantity of the goods later offered for sale on March 31, 1980. One cannot exclude the possibility that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegations of malafides. " In Shri Sachidanand Pandey vs State of West Bengal, ; at 1133, O. Chinnappa Reddy, J. after considering almost all the decisions of this Court on the subject summarised the propositions in the following terms: "On a consideration of the relevant cases cited at the bar the following propositions may be taken as well established: State owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain percepts and principes have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism." After applying these tests, the learned Judge finally upheld the action of West Bengal Government in not inviting tenders, or in not holding a public auction but negotiating straightway at arms length with Taj Group of Hotels for giving about four acres of land for establishing a five star hotel. The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting 1087 tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly. But that is not the only rule. As O.Chinnappa Reddy, J. Observed "that though that is the ordinary rule, it is not an invariable rule. " There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience. What is the position in the present case. Here is a case where the Corporation invited tenders for the sale of the property under notification dated January 18, 1983. The appellant submitted the highest tender in response to the said notification. He was given all concessions for payment of the tender amount. But he did not. He negotiated with the Managing Director of the Corporation for facilities for payment by instalments. That was also granted to him. There again he failed. If the appellant could not act according to his tender, we fail to see why the property should not be offered to the person who was next in order. The Corporation, in our opinion, did not do anything unfair with P.M.Jacob. The Corporation got the tender amount raised from Rs.4,16,550 to Rs.4,50,000. It shows the fairness with which the Corporation dealt with the property. On a consideration of all the facts and circumstances of the case, we are satisfied that the action of the Corporation in offering the property to P.M.Jacob and selling the same at his request to M/s. Gumraj Plantations was perfectly justified and cannot be found fault with In the result the appeal fails and is dismissed. In the circumstances, however, we make no order as to costs. P.S.S. Appeal dismissed.

% The respondent, a State Government Corporation obtained decree for certain amount against the appellant and in execution proceedings a tea estate was brought for sale by court auction in 1969, but in the absence of a bidder the respondent itself had to purchase it at a higher price. The respondent, however, could take possession of the estate only in 1982. It then invited tenders for the sale of the estate. The appellant offered Rs.6,00,000. The next best offer was for Rs.4,15,550 and the third for Rs.2,07,451. The highest offer was accepted, but the appellant could not pay the amount except the earnest money, even after repeated extension of time and offer to receive the balance in instalments. The respondent then negotiated with the next highest bidder, who enhanced the offer to Rs.4,50,000 which was accepted by the respondent. The property, however, was sold to a partnership firm in which the said bidder was a partner. The appellant thereupon moved the High Court complaining that the respondent in selling the property to the firm had deviated from the normal practice of inviting the tenders from the public and that the Corporation being a public authority was bound to act reasonably and fairly and it ought not be have arbitrarily selected the purchaser. The High Court declined to interfere. Dismissing the appeal, ^ HELD: The action of the respondent in offering the property to the person next in order by private negotiations and selling the same at 1080 his request to the partnership firm was perfectly justified. [1087G] The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. They should act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection and should not be suggestive of discrimination, bias, favouritism or nepotism. Ordinarily these facts would be absent if the matter is brought to public auction or sale by tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations necessitating departure from the rule, but then such instances must be justified by compelling reasons and not by just convenience. [1086H; 1087A C] In the instant case, the respondent dealt with the property in all fairness. It invited tenders for the sale of the property under the notification. The appellant submitted the highest tender in response to the said notification. He was granted all concessions and facilities for payment by instalments but he failed. If the appellant could not act according to his tender, there was no reason why the property should not be offered to the person who was next in order. The respondent, therefore, did not do anything unfair with the second bidder after it had got the tender amount raised substantially. [1087D F] K.N. Guruswamy vs The State of Mysore & Ors., ; at 312; Mohinder Singh Gill & Anr. vs The Chief Election Commissioner, New Delhi & Ors., ; R.D. Shetty vs The International Airport Authority of India State of Jammu and Kashmir & Anr., ; ; Fertilizer Corporation Kamagar Union vs Union of India, ; ; Ram and Shyam Company vs State of Haryana & Ors., and Shri Sachidanand Pandey vs State of W. B. ; , applied.

Civil Appeal No. 967 of 1975. (From the judgment and order dated 13 2 1974 of the Calcut ta High Court in Copyright No. 2/73). A.K. Sen, E.P. Skons James, J. 1. Mehta, J. Roy Choud hary, S.K. Mehta, K.R. Nagaraja and P.N. Puri, for the appellant. section Chaudhury, R.K. Bachawat, D.K. Sinha, H.S. Parihar and I. N. Shroff, for respondents 1 5 and 12 and 22. J.C. Bhat, Atul Munim and B.R. Agarwala, for respondents 6 8. B. Sen, B.K. Bachawat, D.K. Sinha, H.S. Parihar and I. N. Shroff, for respondents 12 and 22. J.L. Nain, Atul Munim and B. R. Agarwala, for re spondent No. 19. , V.R. Krishna Iyer, J. also gave a separate opin ion. JASWANT SINGH, J. This appeal by certificate granted under Article 133(1) of the Constitution by the High Court of Judicature at Calcutta which is directed against its judgment dated February 13, 1974, raises the following substantial question of law of general importance : "Whether in view of the provisions of the , an existing and future rights of music . composer, lyricist is capable of assignment and whether the producer of a cinematograph film can defeat the same by engaging the same person. " The facts giving rise to the appeal are: The Indian Performing Right Society Ltd. (hereinafter referred to for the sake of brevity as 'the IPRS '), the appellant before us, was incorporated in the State of Maharashtra on August 23, 1959, as a company limited by guarantee, for the purpose of carrying on business in India of issuing or granting li cences for performance in public of all existing and future Indian Musical works in which copyright subsists in India. The incorporation of the IPRS was in terms of section 2(r) of the , 211 1957 (Act 14 of 1957) (hereinafter referred to as 'the Act ') which was enacted after taking into consideration the Report of the (British) Copyright Committee,1952, the suggestions of the various Ministries of the Government of India and the State Governments, the Indian Universities and certain interested industries and associations who were invited to send their comments on the subjects of copyright. The IPRS has amongst its members the composers of musical works, authors of literary and dramatic works and artists. In accordance with the provisions of section 33 of the Act, the IPRS published on September 27, 1969 and November 29, 1969 in the 'Statesman ' and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences far perform ance in public of works in respect of which it claimed to be an assignee of copyrights and to have authority to grant the aforesaid licences. A number of persons including various associations of producers of cinematograph films who claimed to be the owners of such films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the aforesaid tariff in accordance with the provisions of section 34 of the Act repudiating the claim of the IPRS that it had on behalf of its members authority to grant licences for. performance in public of all existing and future musical works which are incorporated in the sound track of cinematograph films in which copyright may subsist in India or the right to collect in relation thereto any fees, charges or royalties. The association of producers averted inter alia that their members engaged composers and sound writers under contracts of service for composing songs to be utilised in their films; that the musical works prepared by the composers of lyric and music under contract of service with their mem bers producers of the cinematograph films having been utilised and incorporated in the sound track of the cinemat ograph films produced by the latter, all the rights which subsisted in the composers and their works including the right to perform them in public became the property of the producers of the cinematograph films and no copyright sub sisted in the composers which they could assign to and become the basis of the claim of the IPRS under section 33 of the Act; that their members i.e. the producers of cine matograph films being the authors and first owners of the copyright in the cinematograph films produced by them had the exclusive right inter alia to cause the said films in so far as the same consisted of sounds (which include musical works) to be heard in public as also the exclusive right to make records embodying the sound track of the films produced by them (including any musical work incorporated therein) and to cause the said records to be beard in public; that in the making of a cinematograph film as contemplated by the Act a composer composes a lyric or music under a contract of service or for valuable consideration which is substantial a music director sets it to tunes and imparts music to it and a singer sings the same but none of them nor any one of their aforesaid works can and have any separate copyrights; that motion picture is the combination of all arts and music in the sound track which cannot be detached from the film itself; that the purpose of making a motion picture is not only to complete it but also to publicly exhibit it through out the world; that having regard to the provisions of the Act the ' copyright in the case of 212 a cinematograph film vests in the owner of the film as defined in section 2(d) (v) of the Act; and that in the premises any assignment purporting to have been made in favour of the IPRS was void and of no effect and was incapa ble of conferring any rights whatsoever in such musical works on the IPRS. The Cinematograph Exhibitors Association of India also filed objections challenging the right of the IPRS to charge fees and royalties in respect of performance in public of the musical works incorporated in the sound track of the films. Besides raising contentions identical to those raised by various associations of producers they averred that copyright in a cinematograph film which vested in the producers meant copyright in the entirety of the film as an integrated unit including the musical work incorporated in the sound track of the film and the right to perform the work in public; that in accordance with the agreement with the distributors of films the exhibition of cinematograph film includes the right to play in public the music which is an integral part and parcel of the film; that the producers lease out copyrights of public performance of the films vested in them to the distributors who give those rights to the exhibitors an agreement and that when an exhibitor takes a licence for exhibition, it is complete in all respects and a third party like the IPRS cannot claim any licence fee from the exhibitors. On the aforesaid objections being referred to it for determination under section 35 of the Act, the Copyright Board expressed the view that in the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed or written and that they could assign the performing right in public to the IPRS. The Copyright Board further held that the tariff as published by the IPRS was reasonable and the IPRS had the right to grant licences for the public performance of music in the sound track of copyrighted Indian cinematograph films and it could collect fees, royalties and charges in respect of those films with effect from the date on which the tariff was published in the Gazette of India. Aggrieved by the decision of the Copyright Board, the objectors preferred an appeal under section 72 of the Act to the High Court which allowed the same holding that unless there is a contract to the contrary, a composer who composes a lyric or music for the first time for valuable considera tion for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning and that under proviso. (b) to section 17 of the Act, the owner of the film at whose instance, the composition is made, becomes the first owner of the copy right in the composition. The High Court further held that "the composer can claim a copyright in his work only if there is an express agreement between him and the owner of the cinematograph film reserving his copyright". The High Court also held that "though section 18 of the Act confers power to make a contract of assignment, the power can be exercised only when 213 there is an 'existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect". Dissatisfied with this decision, the IPRS has,as already stated, come up in appeal to this Court. The copyright law in our country being fairly complicat ed because of the involved language in which some of its provisions are couched and the case being of first impres sion, learned counsel for the parties have tried hard to help us in solving the knotty points by advancing copious and able arguments. Appearing on behalf of the appellant, Mr. Ashok Sen has urged that the author (composer) of a literary or musical work has copyright which includes inter alia the exclusive right (a) to perform the work in public 'and (b) to make any cinematograph film or a record in respect of the work; that copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or performs the work in public by exhibiting the cinematograph film; that if a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the permission not only of the owner of the copyright in the cinematograph film but also the permission of the owner of the copyright in the literary or musical work which is incorporated in the cinematograph film, as according to section 1. 3 (4) of the Act, the copyright in a cinematograph film or a record does not affect the separate copyright in any work i.n respect of which or a substantial part of which, the film, or as the case may be, the record is made; that the provisions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work em bodied in a cinematograph film; that the only modes in which the author of a literary or musical work ceases to be the owner of copyright m the work are (a) by assignment, '(b) by relinquishment and (c) by the composer composing the work in 'the course of his employment under a contract of service with an employer in which case, the employer becomes the owner of the copyright in the musical work; that in the case of an assignment of copyright in future work and the employ ment of the author to produce a work under a contract of service, the question of priorities will be decided ac cording to the principle "where equities are equal, the first in time shall prevail". Mr. Sachin Chaudhary, learned counsel for respondents 1, 2 and 3, as well as Mr. J.C. Bhat, learned counsel for respondents 6, 7 and 8, and Mr. J.L. Nain, learned counsel for respondent 19, who followed Mr. Chaudhary have on the other hand submitted that the dispute in the instant case, according to the petition of appeal, the judgment of the Copyright Board and the judgment of the Calcutta High Court is confined to the sound track associated with a cinemato graph film (which expression, according to Copinger and Skone James on COPYRIGHT, means "any record of sounds which is incorporated in any print, negative, tape or other arti cle on which the film or part of it, in so far as it con sists of visual images, is recorded, or which is issued by the maker 214 Of the film for use in conjunction with such an article"); that the contention advanced on behalf of the appellant that copyright in a literary or musical work incorporated in the sound track of a cinematograph film vests in the composer of literary or musical work and when the cinematograph film is performed i.e. exhibited in public, the composer is entitled to fee or royalty in that behalf and since the appellant is the assignee of the copyright from the composers, it has the right to collect the fee or royalty is entirely unfound ed; that unlike (the law) in England, in India unless a music is notationally written, printed or graphically repro duced, it is not musical work within the meaning of the and there is no copyright 'in songs or orches tral pieces sung or played directly without its notation being written ' that since a 'cinematograph film ' is defined in section 2(f) of the 'Act as including the sound track and the 'cinematograph ' is required to be construed to include any work produced by any process analogous to cine matography, the owner of the cinematograph film is the firt owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film; that in the case of the film in which a lyric (which literally means a short poem directly expressing the poet 's own thoughts and sentiments in stan zas falling within the purview of the expression "literary work" as defined in section 2(0) of the Act) has been plagiarised, there will be copyright in the film vesting in the producer; that the Act confers a separate copyright on a cinematograph film as a film, its author under section 2(d)(v) of the Act being the owner of the film at the time of its completion; that in the case of a lyric or music incorporated in the sound track of a cinematograph film, since under section 2(f) of the Act, cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the owner of copyright the. right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. They have further urged that it is not correct to say that under section 17, proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commis sioned. According to counsel for respondents section 17 proviso (b) will equally apply if someone is commissioned to make any component part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer; that as the Act confers a sepa rate copyright on a cinematograph film as a film, the pro ducer can exercise both the rights conferred on him under section 14(1).(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall co exist with those created by section 14(1)(c) and (d) of the Act, e.g. under clause (a), the 215 copyright in a literary work such as a novel entitles its author to make a cinematograph film in respect of the work, and to exercise the remaining rights created by section 14(1)(a) of the Act. But once he has licensed someone to make a cinematograph film, the licensee shall have the rights provided in clauses (c) and (d) of section 14(1) of the Act in respect of the film. We have given our earnest consideration to the submis sions made by learned counsel for the parties. So far as the first part of the question reproduced above is con cerned, there is no dispute between the parties. Both sides are agreed that in view of the provisions of section 18 of the Act, the material portion of which lays down that "(1) the owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partial ly and either generally or subject to limitations and either for the whole term of the copyright or any part thereof; provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence, (2)where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly", the first part of the question should be answered in the affirmative. It is accordingly held that an existing and future right of music . composer and lyricist in their respective 'works ' as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act, as also in section 19 of the Act which requires an assignment to be in writing, signed by the assignor or by his duly authorised agent. It is the second part of the question which has been a hot bed of controversy between the parties that has got to be tackled. The main point for determination in regard to this part of the question is whether the composer of lyric or musical work (which in terms of section 2(p) of the Act means only a notationally written, printed or graphically produced or reproduced music) retains a copyright in the lyric or musical work if he grants a licence or permission to an author (owner) of a cinematograph film for its incor poration in the sound track of a cinematograph film. For a proper appreciation and determination of the contentions raised before us, it is necessary to notice certain provi sions of the Act. The terms 'author ', 'Cinematograph film ', 'exclusive licence ', 'infringing copy ', 'musical work ', 'performance ' performing rights society ', 'radio diffusion ' and 'work ' are defined in clauses (d), (f), (j), (m), (p), (q), (r), (v) and (y) respectively of section 2 of the Act as under : "(d) author means, (i) in relation to a literary or dramatic work, the author of the work; 5 240SC I / 7 7 216 (ii) in relation to a musical work, the com poser; (iii) ** ** ** (iv) ** ** ** (v) in relation to a cinematograph film, the owner of the film at the time of its comple tion; and (vi) in relation to a record, the owner of the original plate from which the record is made, at the time of the making of the plate". "(f) cinematograph film includes the sound track, if any, and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography." "(j) exclusive licence means a licence which confers on the licensee or on the licen see and persons authorised by him. to the exclusion of all other persons (including the owner of the copyright), any right comprised in the copyright in a work, and "exclusive licensee" shall be construed accordingly." "(m) infringing copy means, (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film; (ii) in relation to a cinematograph film, a copy of the film or a record embodying the recording in any part of the sound track associated with the film; (iii) ** ** ** (iv) ** ** **" "(p) musical work means any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced". "(q) performance includes any mode of visual or acoustic presentation including any such presentation by the exhibition of a cinematograph film, or by means of radiodif fusion, or by the use of a record, or by any other means and, in relation to a lecture, includes the delivery of such lecture". "(r) performing rights society means a society, association or other body, whether incorporated or not, which carries on business in India of issuing or granting licences for the performance in India of any works in which copyright subsists". 217 (v) radio diffusion includes communication to the public by any means of wireless diffu sion whether in the form of sounds or visual images or both". "(y) work means any of the following works, namely (i) aliterary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a record". Section 13 of the Act provides as follows : "13. Works in which copyright subsists. (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say, (a) original literary, dramatic musical and artistic works; (b) cinematograph films; and (c) records. (2) ** ** ** (3) Copyright shall not subsist (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any record made in respect of a liter ary, dramatic or musical work, if in making the record, copyright in such work has been infringed. (4) The copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. (5) ** ** ** Section 14 of the Act which contains the meaning of the expression "copyright" is to the following effect : "14. Meaning of copyright. " (1) For the purposes of this Act: "copyright" means the exclusive right, by virtue of, and subject to the provisions of, this Act, (a) in the case of literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely (i) to reproduce the work in any material form; (ii) to publish the work; (iii) to perform the work in public; 218 (iv) to produce, reproduce, perform or publish any translation of the work; (v) to make any cinematograph film or a record in respect of the work; (vi) to communicate the work by radio diffu sion or to communicate to the public by a loud speaker or any other similar instrument the radio diffusion of the work; (vii) to make any adaptation of the work; (viii) to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (vi): (b) ** ** ** (c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely (i) to make a copy of the film; (ii) to cause the film, in so far as it con sists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public; (iii) to make any record embodying the record ing in any part of the sound track associated with the film by utilising such sound track; (iv) to communicate the film by radio diffu sion; (d) in the case of a record, to do or authorise the doing of any of the following acts by utilising the record, namely (i) to make any other record embodying the same recording; (ii) to cause the recording embodied in the record to be heard in public; (iii) to communicate the recording embodied in the record by radio diffusion. (2) Any reference in sub section (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing or that act in relation to a substantial part thereof". Section 17 of the Act which relates to ownership of copyright provides as under : "17. First owner of copyright. Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein; Provided that 219 (a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agree ment to the contrary. be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work; (b) Subject to the provisions of clause (a), in the case of a photograph taken, or a paint ing or portrait drawn, or an engraving or a cinematograph film made. for valuable consid eration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (c) in the case of a work made in the course of the author 's employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (d) ** ** ** (e) ** ** ** Sections 22 and 26 of the Act which deal with the term of copyright in musical and other works and cinematograph films are to the following effect : "22. Term of copyright in published liter ary, dramatic musical and artistic works. Except as otherwise hereinafter pro vided, copyright shall subsist in any liter ary, dramatic, musical or artistic work (other than a photograph) published within the life time of the author until fifty years from the beginning of the calendar year following the year in which the author dies. Explanation. In this section, the refer ence to the author shall, in the case of a work of Joint authorship, be construed as a reference to the author who dies last . Term of copyright in cinematograph films. In the case of a cinematograph film, copyright shall subsist until fifty years from the beginning of the calendar year next fol lowing the year in which the film is pub lished". 220 Section 30 of the Act which deals with grant of licences by owners of copyright runs thus : "30. Licences by owners of copyright. The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent: Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence. Explanation. When a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, is entitled to the benefit of the licence". The interpretation clause (f) of section 2 reproduced above, which is not exhaustive, leaves no room for doubt when read in conjunction with section 14(1)(c)(iii) that the term "cinematograph film" includes a sound track associated with the film. In the light of these provisions, it cannot be disputed that a "cinematograph film" is to be taken to include the sounds embodied in a sound track which is asso ciated with the film. Section 13 recognises 'cinematograph film ' as a distinct and separate class of 'work ' and de clares that copyright shall subsist therein throughout India. Section 14 which enumerates the fights that subsist in various classes of works mentioned in section 13 provides that copyright in case of a literary or musical work means inter alia (a) the right to perform or cause the performance of the work in public and (b) to make or authorise the making of a cinematograph film or a record in respect of the work. It also provides that copyright in case of cinemato graph film means. among other rights, the right of exhibit ing or causing the exhibition m public of the cinematograph film i.e. of causing the film in so far as it consists of visual images to be seen in public and in so far it consists of sounds to be heard in public. Section 13(4) on which Mr. Ashok Sen has leaned heavily in support of his contentions lays down that the copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. Though a conflict may at first sight seem to exist between section 13(4) and section 14(1) (a) (iii) on the one hand and sec tion 14(1) (c) (ii) on the other, a close scrutiny and a harmonious and rational instead of a mechanical construction of the said provisions cannot but lead to the irresistible conclusion that once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have, his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires by virtue of section 14(1) '(e) of the Act on completion of the cinematograph film a copyright which gives 221 him the exclusive right inter alia of performing the work in public i.e. to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in pub lic. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film pro ducer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be re strained from doing so. In other words, the author (com poser) of lyric or musical work who has authorised a cinematograph film producer to. make a cinematograph film of his work and has thereby permitted him to appropri ate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffu sion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things. In such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the express provisions of clauses (f), (m), (y) of section 2, section 13(1)(b) and section 14(1)(c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinemato graph film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. On a conspectus of the scheme of the Act as disclosed in the provisions reproduced above particularly clauses (d)(v), (f) (m), (v)and (y) of section 2, sections 13(1) and 14(1)(c), provisos (b)and (c) to section 17 and sections 22 and 26 of the Act, it is, therefore, abundantly clear that a protectable copyright (comprising a 222 bundle of exclusive rights mentioned in section 14(1)(c) of the Act) comes to vest in a cinematograph film on its com pletion which is said to take place when the visual portion and audible portion are synchronized. This takes us to the core of the question namely, wheth er the producer of a cinematograph film can defeat the right of the composer of music . or lyricst by engaging him. The key to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric there fore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein 'and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprentice.ship to compose the work. It is, therefore, crystal clear that the rights of a music composer or . lyricst Can be defeated by the producer of a cinemat ograph film in the manner laid down in provisos (b) and (c) of section 17 of the Act. We are fortified in this view by the decision in Wallerstein vs Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plain tiff in pursuance of his engagement to give effect to cer tain situations in the drama entitled "Lady Andley 's Secret", which was to be put on the stage was not an inde pendent composition but was merely an accessory to and a Fart and parcel of the drama and the plaintiff did not have any right in the music. For the foregoing reasons, we do not find any justification to interfere with the order of the High Court. Conse quently, the appeal fails and is dismissed but in the circumstances of the case without any order as to costs. KRISHNA IYER, J. The judgment just delivered is on behalf of the Court, which makes this footnote, in a sense, otiose. But I do append the abbreviated opinion solely to belight a slightly penumberal area of the law and to voice a need for legislative exploration to protect a category now left in the cold. A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars, if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor. Cinema is more. than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that 223 ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities. Copyright in a cinema film exists in law, but section 13(4) of the Act preserves the separate survival, in its individuality, of a copyright enjoyed by any 'work ' notwith standing its confluence in the film. This persistence of the aesthetic 'personality ' of the intellectual property cannot cut down the copyright of the film qua film. The latter right is, as explained earlier in my learned broth er 's judgment, set out indubitably in section 14(1)(c). True, the exclusive right, otherwise called copyright, in the case of a musical work extends to all the sub rights spelt out in section 14(1)(a). A harmonious construction of section 14, which is the integral yoga of copyrights in creative works, takes us to the soul of the subject. The artist enjoys his copyright in the musical work, the filmproducer is the master of his combination of artistic pieces and the two can happily co exist and need not conflict. What is the modus vivendi ? The solution is simple. The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film, but he cannot trench on I the composer 's copyright which he does only if the 'music ' is performed or produced or reproduced separately, in violation of section 14(1)(a). For instance, a film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or other theatre. To do that is the privilege of the composer and that right of his is not crowned in the film copyright except where there is special provision such as in section 17, proviso (c). So, beyond exhib iting the film as a cinema show, if the producer plays the songs separately to attract an audience or for other reason, he infringes the composer 's copyright. Anywhere, in a restaurant or aeroplane or radio station or cinema theatre, if a music is played, there comes into play the copyright of the composer or the Performing Arts Society. These are the boundaries of composite creations of art which are at once individual and collective, viewed from different angles. In 'a cosmic perspective, a thing of beauty has no boundary and is humanity 's property but in the materialist plane on which artists thrive, private and exclusive estate in art subsists. Man, the noblest work of the Infinite Artist, strangely enough, battles for the finite products of his art and the secular law, operating on the temporal level, guard ians material works possessing spiritual values. The enig matic small of Mona, Lisa is the timeless heritage of man kind but, till liberated by the prescribed passage of time, the private copyright of the human maker says, 'hands off '. The creative intelligence of man is displayed in multiform ways of aesthetic expression but it often happens that economic systems so operate that the priceless divinity which we call artistic or literary creativity in man is exploited and masterS, whose works are invaluable, are victims of piffling payments. World opinion in defence of the human right to intellectual property led to internation al conventions and municipal laws, commissions, codes and organisations, calculated to protect works of article India responded to this universal need by enacting the . 224 Not the recommendations in conventions but provisions in municipal laws determine enforceable rightS. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged, through the sound track, into the motion picture, is copyrighted by the producer but, on account of this monopoly, the music composer 's copyright does not perish. The twin rights can co exiSt, each ful filling itself in its delectable distinctiveness. Section 14 has, in its careful arrangement of the rights belonging to each copyright, has a certain melody and harmony to miss which is to lose the sense of the Scheme. A somewhat un Indian feature we noticed in the Indian copyright Act falls to be mentioned. Of course, when ' our law is intellectual 'borrowing from British reports, as admittedly it is, such exoticism is possible. 'Musical work ', as defined in s.2 ( p) reads: "(p) musical work means any combina tion of melody and harmony or either of them printed, re duced to writing or otherwise graphically produced or reproduced." Therefore, copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful render ing. It is the melody or harmony reduced to print, writing or graphic form. The Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the rags, the bhava, the lava and the sublime or exciting singing. Printed music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal. Strangely enough, 'author ', as defined in s.2(d), in rela tion to a musical work, is only the composer and section 16 confies 'copyright ' to those works which are recognised by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitle ment of the musician or group of musical artists to copy right is un Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognised by the copyright law. I make this observation only because act in one sense, depends on the ethos and the aesthetic best of a people; and while universal protection of intellectual and aesthetic property of creators of 'works ' is an international obligation, each country in its law must protect such rights wherever originality is con tributed. So viewed, apart from the music composer, the singer must be conferred a right. Of course, law making is the province of Parliament but the Court must communicate to the lawmaker such infirmities as exist in the law extant. S.R. Appeal dismissed.

The appellant society was incorporated in terms of section 2(r) of the (Act 14 of 1957), in the State of Maharashtra on August 23, 1969 as a company limited by guarantee for the purpose of carrying on business in India of issuing or granting licences for performance in public of all existing and future Indian musical works in which copyright within the meaning of section 13 subsists in India. The appellant company has amongst its members the composers of musical works, authors of literary and dramatic works and artistes. In accordance with the provisions of section 33 of the Copyright Act, the appellant published on September 27, 1969 and November 29, 1969 in the "Statesman" and the Gazette of India respectively a tariff laying down the fees, charges and royalties that it proposed to collect for the grant of licences for performance in public of works in respect of which it claimed to be an assignee of copy rights and to have authority to grant the aforesaid li cences. A number of persons including various associations of producers of cinematograph films including the sound track thereof and the Cinematograph Exhibitors Association of India filed objections in respect of the tariff before the Copyright Board in accordance with the provisions of section 34 of the Act, repudiating the rights of the appel lant. The Copyright Board held : (1) In the absence of proof to the contrary, the composers of lyrics and music retained the copyright in their musical works incorporated in the sound track of cinematograph films provided such lyrical and musical works were printed on written and that they could assign the performing right in public to the appellant. (2) The tariff as published by the appellant was reasonable. (3) The appellant had the right to grant li cences for the public performance of music in the sound track of copyrighted Indian cinematograph films and (4) It could collect fees, royalties and charges in respect of those films w.e.f. the date on which the tariff was pub lished in the Gazette of India. The High Court allowed the appeal preferred by the respondents under section 72 of the Act and held: (i) Unless there is a contract to the contrary a composer who composes a lyric or music for the first time for valuable consideration for a cinematograph film does not acquire any copyright either in respect of film or its sound track which he is capable of assigning. (ii) Under proviso (b) to section 17 of the Act, the owner of the film at whose instance the composition is made becomes the first owner of the copyright in the composition. (iii) The compos er can claim a copyright in his work only if there is an express agreement between him and the owner of the cinemato graph film reserving his copyright. (iv) Though section 18 of the Act confers power to make a contract of assignment. the power can be exercised only when there is an existing or future right to be assigned and that in the circumstances of the present case, assignment, if any, of the copyright in any future work is of no effect. In appeal by certificate to this Court, the appellant contended (1) The author (composer) of a literary or musical work has copyright which includes. inter alia. the exclusive right (a) to perform the work in public and 207 (b) to make any cinematograph film or a record in respect of the work. (2) That copyright in a literary or musical work is infringed by any person if without a licence granted to him by the owner of the copyright, he makes a cinematograph film in respect of the work or perform the work in public by exhibiting the cinematograph film. (3) If a person desires to exhibit in public a cinematograph film containing a musical work, he has to take the per mission not only of the owner of the copyright in the cine matograph film but also the permission of the owner of the copyright in the literary or musical work which is incor porated in the cinematograph film, as according to section 13(4) of the Act, the copyright in a cinematograph film or a record does not effect the separate copyright in any work in respect of which or a substantial part of which the film or as the case may be, the record is made (4). The provi sions of section 17(b) of the Act have no application to a literary or musical work or the separate copyright therein and do not take away the copyright in a literary or musical work embodied in a cinematograph film. (5) The only modes in which the author of a literary work or musical work ceases to be the owner of copyright in the work are (a) by assigning under section 18(b) by relinquishment under section 21 and (c) by the composer composing the work in the course of his employment under a contract of service with an employer in which case the employer becomes the owner of the copyright in the musical work. (6) In the case of an assignment of copyright in future work and the employment of the author to produce a work under a contract of service, the question of priorities will be decided according to the principles "where equities are equal, the first in time shall prevail". The respondent 's contentions were (i) Unless a music is notationally written, printed or graphically reproduced it is not a musical work within the meaning of Copyright Act and there is no copyright in songs or orchestral pieces sung or played directly without its notation being written. (ii) Since a "cinematograph film" is defined in section 2(f) of the Act as including the sound track and the "cinema tograph" is required to be construed to include any work produced by any process analogous to cinematography the owner of the cinematograph film is the first owner of the copyright therein including the right of the composer of the literary or musical work incorporated in the sound track of the film. (iii) In the case of the film in which a lyric (which literally means a short poem directly expressing the poet 's own thoughts and sentiments in instances failing within the purview of the expression "literary work" as defined in section 2(0) of the Act has been plagiarised, there will be copyright in the film vesting in the pro ducer. (iv) The Act confers a separate copyright of a cinematograph film as a film, its author under section 2(d)(v) of the Act being the owner of the film at the time of its completion. (v) In the case of a lyric or music incorporat ed under the sound track of a cinematograph film, since in section 2(f) of the Act cinematograph film includes its sound track and section 13(1)(b) of the Act confers copyright on the cinematograph film and section 14(c) (ii) of the Act confers on the. owner of copyright the right to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of songs to be heard in public, it is not necessary for the owner of the cinematograph film to secure the permission of the composer of the lyric or of the music incorporated in the sound track of a cinematograph film for exhibiting or causing the exhibition of the sound portion of the film in public or for causing the records of the sound track of the film to be heard in public. (vii) It is not correct to say that under section 17 proviso (b) in order that the producer of the cinematograph film should have copyright in the literary or musical work incorporated in it, the making of the entire film should be commissioned. Section 17(b) will equally apply if someone is commissioned to make any compo nent part of a cinematograph film such as a lyric or musical work i.e. when such component of the film is made at the instance of a film producer for valuable consideration, the copyright for such component shall as well vest in the producer. (viii) As the Act confers a separate copyright on a cinematograph film as a film the producer can exercise both the rights conferred on him under section 141(c)(ii) of the Act and all that section 13(4) of the Act (when applicable) provides is that the rights created by section 14(1)(a) and (b) shall coexist with those created by section 14(1)(e) and (d) of the Act. Dismissing the appeal the Court, HELD: (Per Krishna Iyer, J. concurring) 208 (1) Copyright in a cinema film exists in law but section 13(4) of the Act preserves the separate survival in its individuality of a copyright enjoyed by any work notwith standing its confluence in the film. This persistence of the aesthetic personality of the intellectual property cannot cut down the copyright of the film qua film. The exclusive right, otherwise, called copyright, in the ' case of a musical work extends to all the sub rights spelt out in section 14(1) (a). A harmonious construction, of section 14, which is the integral yoga of copyright shows that the artiste enjoys his copyright in the musical _work the film producer is the master of his combination of artistic .pieces and the two can. happily co exist and need not conflict. [223 A C] (2) The boundaries of composite creations of art which are at once individual and collective may be viewed from different angles. In a cosmic perspective, a thing of beauty has no boundary and is humanity 's property but in the materialist plane on which artistes thrive private and exclusive estate inert subsists. The enigmatic smale of Mona Lisa is the timeless heritage of mankind, but, till liberated by the prescribed passage of time, the private copy right of the human maker says, "hands off. [223 F G] (3) The film producer has the sole right to exercise what is his entitlement under section 14(1)(c) qua film. But, he cannot trench on the composer 's copyright which he does only if the 'music ' is performed or produced or repro duced separately, in violation of section 14(1)(a). A film may be caused to be exhibited as a film but the pieces of music cannot be picked out of the sound track and played in the cinema or the theatre. To do that is the privilege of the composer and that right of his is not drowned in the film ' copyright except where there is special provision such as section 17, proviso (c). Beyond exhibiting the film as a cinema show if the producer plays the songs separately to attract an audience or for other reasons he infringes the composer 's copyright, the copyright of the composer or the Performing Acts Society comes into play, if a music is played, whether in a restaurant or aeroplane or radio sta tion or cinema theatre. [223 C E] (4) Section 14 has in its careful arrangement of the right belonging each copyright has a certain melody and harmony to music which is to loose the sense of the same. Our copyright statute protects the composite cinematograph work produced by lay out of heavy money and many talents but does not extinguish the copyrightable component parts in toto. The music which has merged through the sound track, into the motion picture is copyright by the producer but, on account of this monopoly, the music composer 's copyright does not perish. The twin rights can co exist each fulfil ing itself in its delectable distinctiveness. [224 A B] Observation: Apart from the music composed, the singer must be conferred a right. Copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonder ful rendering. It is the melody or harmony reduced to print writing or graphic form of musical works. Author as defined in s.2(d) in relation to a musical work is only the composer and section 16 confines copyright to those works which are recognised by the Act, which means the composer alone has copyright in a musical work and the singer has none. This disentitlement of the musician or group of musical artistes to copyright is un Indian because the major attraction which lends monetary value to a musical performance is not the music maker so much as the musician. Perhaps both deserve to be recognised by the copyright law, because art in one sense depends on the ethos and the aesthetic best of a people and while universal protection of intellectual and aesthetic property of creators of "works" is an international obliga tion each country in its law must protect such rights wher ever originally is contributed. [224 E H] Per Jaswant Singh J. (1) The existing and future right of music . . composer and lyrics in their respective works as defined in the Act is capable of assignment subject to the conditions mentioned in section 18 of the Act as also in section 209 19 of the Act which requires an assignment to be in writing, signed by the assigner or by his duly authorised agent. [215 D E] (2) The interpretation of clause (f) of section 2 which is not exhaustive leaves no room for doubt when read in conjunction with section 14(1)(c)(iii), that the term cine matograph film includes a sound track associated with the film. [220 D] (3) A harmonious and rational instead of mechanical construction of section 34, section 14(1)(a)(iii) and section 14(1)(c)(ii) will be: (A) Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film pro ducer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded in sound track of a cinematograph film, the latter.acquires by virtue of section 14(1)(c) of the Act on completion of the cinematograph film a copyright which gives him the exclu sive right, inter alma, of performing the work in public that is, to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. A distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which relates both to copying the film and to its performance in public. (B) If an author (composer) of a lyric or a musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track or a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or the musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. (C) The composer of a lyric or musical work retains the right of performing it in public for profit otherwise than as a part of cinematograph film and he cannot be restrained from doing so. In other words, the author (composer) of a lyric or musical work who has authorised a cinematograph film producer to make a cinematograph film of his work and thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising the communication of the film by radio diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of a cinematograph film to do all these things. In such cases the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the ex press provisions of clause (f), (m), (y) of section 2, section 13(1)(b) ,red section 14(1)(c) of the Act otiose but would also defeat the intention of the legislature which in view of the growing importance of the cinematograph film as a powerful media of expression and the highly complex, technical and scientific process and heavy capital outlay involved in its production has sought to recognise as a separate entity and to treat a record embodying the record ing in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood. [220 G H; 221 A G] (4)Clauses (d), (v), (f), (m), (v) and (y) of section 2, section 13(1) and 14(1)(c), provisos (b) and (c) to section 17 and section 22 and 26 of the Act abundantly make it clear that protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act comes to 210 vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized. [221 H; 222 A] (5) The rights of music . . composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in proviso (b) and (c) of section 17 of the Act. In both the. cases falling under clauses (b) and (c) of section 17, a cinematograph film producer becomes the. first owner of the copyright and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on one hand and the producer of the cinemato graph film on the other. [222 D F] Wallerstein vs Herbert (1867) Vol. 16, Law Times Reports 453, quoted with approval.

Appeal No. 120 of 1955. Appeal from the judgment and decree dated March 25, 1949, of the Madras High Court in Appeal No. 55 of 1946, arising out of the judgment and decree dated November 26, 1945, of the Court of the District Judge of Bellary in Original Suit No. 39 of 1943. A. V. Viswanatha Sastri and K. R. Chaudhury for B. K. B. Naidu, for the appellant. K.N. Rajagopala Sastri and M. section K. Sastri, for the respondents. December 19. The Judgment of the Court was delivered by IMAM, J. This appeal is before us on a certificate granted by the High Court as according to that Court a substantial question of law arose in the case which was stated by it to be " Is the adoption of the second defendant invalid, as the approval or consent of the five trustees mentioned in paragraph 14 of the will of Kari Veerappa, Exbt. P 2(a) was not obtained; and is the authority to adopt at an end if any one of those five persons did not accept the trusteeship or died before the adoption or refused to give their approval ". In view of certain matters about to be stated, the question of law as propounded by the High Court does not require to be considered. Kari Veerappa was the last male owner of the estate mentioned in his will, Exbt. P 2(a), which he executed on October 10, 1920. Under this will he authorised his wife Setra Veeravva, first defendant, to adopt a son for the purpose of continuation of his family as 970 he had no issue. The authority to adopt was in the following terms: " I have given her permission to adopt as many times as would be necessary, should the previous adoption be unsuccessful. But Veeravva must adopt only a boy approved by the respectable persons appointed by me in paragraph 14; should Veeravva die before making any adoption, the persons becoming trustees should arrange for the adoption of a boy for the continuation of my family in accordance with my kulachara (family usage) At this stage it is unnecessary to refer to the other provisions of the will of Kari Veerappa. This gentle. man died on October 23, 1920. After his death, his widow made two attempts to adopt a son in accordance with his will. The first attempt was in 1939 which did not accomplish the purpose of the will as the person alleged to have been adopted died. The validity of this adoption was being questioned, but as the boy said to have been adopted had died, effects to dispute the adoption did not materialise. Veeravva thereafter, on October 11, 1942, adopted second defendant, Sesalvada Kotra Basayya. Two documents in this connection are on the record. The first document is Exbt. D 25 dated the 18th of September, 1942, which was a registered agreement to adopt the second defendant. The second document is also a registered document, which is described as the deed of adoption and is dated June 23, 1943. This clearly states that on October 11, 1942, Veeravva had adopted the 2nd defendant. Reference was also made in this document to the agreement of September 18, 1942. The appellant claiming to be the nearest reversioner of Kari Veerappa filed the present suit asking for a declaration that the adoption of the second defendant by Veeravva was invalid and not binding on the appellant or the other reversioners to the estate of the late Kari Veerappa. The suit filed by the appellant was heard by the District Judge of Bellary who dismissed it. The appellant appealed to the High Court of Madras. His appeal was dismissed and the decision of the District 971 Judge was substantially affirmed. The High Court did not allow compensatory costs granted by the District Judge, nor did it agree with his finding that the appellant had failed to prove the relationship he had propounded and that lie was not a reversioner at all, far less the nearest reversioner. In the opinion of the High Court, the appellant was a relative and a reversioner, though he had not proved that he was the nearest reversioner alive at the time the appeal was heard and that he need not prove this until he actually sought to recover possession of the property after Veeravva 's death. When this appeal came on for hearing the learned Advocate for the respondents took a preliminary objection that the suit filed by the plaintiff must in any event fail, having regard to the provisions of section 14 of the (30 of 1956), hereinafter referred to as the Act. Hence the present appeal arising out of that suit must also fail. It was contended on behalf of the respondents that either there was a valid adoption or there was not. If there was a valid adoption and the decisions of the High Court and the District Judge on this question were correct, then obviously the suit of the appellant must be dismissed. If, on the other hand, it was found that the adoption of the second defendant by Veeravva was either invalid or, in fact, had not taken place, then under the provisions of section 14 of the Act, Veeravva became the full owner of her husband 's estate and was not a limited owner thereof. Consequently, the appellant 's suit was not maintainable. In, view of this submission we are of the opinion that the point raised by way of preliminary objection must first be considered and decided. It is well settled that an appellate court is entitled to take into consideration any change in the law (vide the case of Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri(1). Section 14 of the Act states: " 14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. (1) 972 Explanation. In this sub section, " property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2)Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. " On behalf of the appellant it was urged that section 14 of the Act did not apply to the facts of the present case because the estate of Veerappa was not in possession of his widow Veeravva but was in possession of the second defendant at the time the Act came into force and, secondly, because under sub section (2) of section 14 Veeravva got a restricted estate under the will Exbt. P 2(a) and the agreement to adopt, Exbt. It was submitted that the widow , s power of adoption did not depend on her ownership of the estate of her husband. That power in the present case was derived under the Hindu law either from the authority conferred by her husband or the consent of his agnates. The Act did not enlarge her power of adoption and did not render an invalid adoption made by her immune from attack by the reversioners during her life time. The act of Veeravva in the present case was to bring in a stranger. The appellant as a rever sioner was, therefore, entitled during the life time of Veeravva to bring the present suit to obtain a declaration that the adoption of the second defendant was invalid. The question raised by the preliminary objection taken by the respondents must be considered an the assumption that the adoption of the second defendant 973 was invalid. The provisions of a. 14 of the Act would not arise for consideration, if the second defendant had been validly adopted. It is necessary, therefore, to determine whether the provisions of section 14 apply to the facts of the present case. It was strongly urged on behalf of the appellant that the words " any property possessed by a female Hindu " in section 14 of the Act referred to actual possession of the property whether the property was acquired before or after the Act came into force. This was a condition precedent to the applicability of the provisions of section 14 to the present case. Since the Act came into force on June 17, 1956, and the decision of the High Court was given on March 25, 1955, the question as to who was in actual possession of the estate of Veerappa did not arise for consideration on the case of the appellant set out in his plaint. The appellant should accordingly be given an opportunity to have a finding recorded on this question after the taking of evidence in that respect. On behalf of the respondents it was urged that the words " any property possessed by a female Hindu " did not refer merely to actual physical possession only but to ownership and possession in law as well. It was further urged on behalf of the respondents that even if it be assumed that the words " possessed by a female Hindu " mean actual possession then, in the present case, it had been proved that Veeravva was in actual possession of the estate of Veerappa when the Act came into force. It could not be disputed that on the death of Veerappa, Veeravva came into possession of his estate and that she remained in possession at least until 1942 when the adoption of the second defendant is said to have taken place. But even on the adoption of the second defendant, the agreement to adopt dated September 18, 1942, stated that Veeravva was to remain in possession of her husband 's estate during her life time in spite of the adoption. In the written statement filed by Veeravva and the second defendant it was clearly stated in para. 6 thereof that Veeravva came into possession of her husband 's property and that she recovered possession 974 of the property covered by the decree in 0. section 20 of 1921 on the file of the Subordinate Judge 's Court, Bellary, and that she had been in sole possession of the said property up to date and that although she had adopted the second defendant on October 11, 1942, it was subject to retention of the enjoyment, possession and management by her of her husband 's property during her life time. An affidavit had been filed in this Court by the second defendant in which he has clearly admitted that Veeravva is still in possession of his adoptive father 's estate in pursuance of the agreement of September 18, 1942. This was an admission against his own interest by the second defendant which he was not likely to make unless it was a fact that Veeravva was in possession of the estate since her husband 's death up to the present. In answer to the affidavit of the second defendant and Veeravva that she was in actual possession, the appellant had failed to file an affidavit with any clear assertion that to his knowledge Veeravva was not in Possession. The affidavit filed by the appellant was in the nature of submissions made to the Court rather than an affidavit in which facts to his knowledge were asserted. In para. 2 he had made the significant statement " I understand that the possession of the suit properties has been and is now, in truth and in fact, with the alleged adopted son, the second petitioner. He is in possession of these properties and is dealing with them." He did not disclose bow he came to under. stand this. He certainly did not assert that all that was stated in para. 2 was to his knowledge. As an alternative, the appellant in para. 4 of his affidavit had submitted ,If I succeed in proving that the adoption is not true and valid, the petitioners cannot turn round and say that the possession of the first petitioner is that of a widow of an intestate and invoke the provisions of section 14 of the Succession Act." He had further submitted in this paragraph that, even on the case of the respondents set out in their petition for adding additional grounds, Veeravva 's estate was divested by the adoption, and as she came into possession by reason of the ante adoption agreement 975 Exbt. D 25, section 14 of the Act was not applicable. It seems to us that if it were permissible to decide the question of Veeravva 's possession on only the affidavits before us, we would find no difficulty in holding that she was in possession of her husband 's estate when the Act came into force. It is to be remembered, however, that this question has arisen now and the appellant has had no real opportunity to establish his assertion that the second defendant is in actual possession and not Veeravva. It is necessary therefore to consider the true scope and effect of the provisions of sub section (1) of a. 14 of the Act. If the words " possessed by a female Hindu " occurring therein refer only to actual physical possession, it may be necessary to call for a finding on the question of such possession; if, on the contrary, these words have a wide connotation and include constructive possession or possession in law, the preliminary objection can be determined on the footing that Veeravva was in such possession at the relevant time. The provisions of section 14 of the Act have been the subject of scrutiny and interpretation by various High Courts. In the case of Rama Ayodhya Missir vs Raghunath Missir (1) and in the case of Mt. Janki Kuer vs Chhathu Prasad (2) the Patna High Court took the view that the effect of sections 14 and 15 of the Act was that a reversioner recognised as such under the Hindu law was no more a reversioner, as a female Hindu possessing any property, whether acquired before or after the commencement of the Act, held not a limited estate but an absolute estate therein, and after the coming into force of the Act, he had no right of reversion or any kind Of Spes successionsis. The High Courts of Calcutta, Andhra Pradesh and Madhya Pradesh have taken a view which does not support the view expressed by the Patna High Court in the aforesaid cases, The High Court of 'Madhya Pradesh in the case of Mt. Lukai vs Niranjan (3) dissented from the decisions of the Patna High Court in the above mentioned cases. ' Indeed, the Patna High Court in the case of (1)A.I.R. 1957 Pat. 480. (2) A.I.R. 1957 Pat. (3) A.I.R. 1058 Madh. Pra. 160. 976 Harak Singh vs KailaSh Singh (1) overruled its previous decisions referred to above, and rightly pointed out that the object of the Act was to improve the legal status of Hindu women, enlarging their limited interest in property inherited or held by them to an absolute interest, provided they were in possession of the property when the Act came into force and, therefore, in a position to take advantage of its beneficial provisions; but the Act was not intended to benefit alienees who with their eyes open purchased the property from the limited owners without justifying necessity before the Act came into force and at a time when the vendors had only a limited interest of Hindu women. In the case before us, the essential question for con sideration is as to how the words "any property possessed by a female Hindu, whether aquired before or after the commencement of this Act " in a. 14 of the Act should be interpreted. Section 14 refers to property which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the Act certainly makes the provisions of the section re trospective, but even in such a case the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is no question in the present case that Veeravva acquired the property of her deceased husband before the commencement of the Act. In order that the provisions of section 14 may apply to the present case it will have to be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not Veeravva at the relevant time. On behalf of the respondent it was urged that the words " possessed by " had a wider meaning than actual physical possession, although physical possession may be included in the expression. (1) A.I.R. 1958 Pat. 977 In the case of Gaddam Venkayamma vs Gaddam Veerayya (1) Viswanatha Sastri, J., with whom Satyanarayana Raju, J., agreed, expressed the opinion that "the word ' possessed ' in section 14 refers to possession on the date when the Act came into force. course, possession referred to in section 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of section 14. The word " possessed " is used in section 14 in a broad sense and in the context possession means the state of owning or having in one 's hands or power. it includes possession by receipt of rents and profits. " The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary in the present case to go to the extent to which the learned Judges went. It is sufficient to say that possessed " in section 14 is used in a broad sense and in the context means the state of owning or having in one 's hand or power. In the case of Gostha Behari vs Haridas Samanta (2), P. N. Mookherjee, J., expressed his opinion as to the meaning of the words " any property possessed by a female Hindu " in the following words: "The opening words in " property possessed by a female Hindu obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female 's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into (1) A.I.R. 1957 Andh. Pra. 280. 123 (2) A.I.R. 1957 Cal. 557, 559. 978 absolute estate under this particular section, was at least in such possession, taking the word " possession " in its widest connotation, when the Act came into force, the section would not apply ". In our opinion, the view expressed above is the correct view as to how the words " any property possessed by a female Hindu " should be interpreted. In the present case if the adoption was invalid, the full owner of Veerappa 's estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant. In this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva. It was suggested that according to the will of Veerappa, Exbt. P_2(a), in the properties mentioned in para. 1 of that will, Veeravva got only a restricted estate. The provisions of para. 4 of the will, however, make it clear that they would come into force only if the trustees mentioned in the will and Veeravva should disagree. No material was shown to us that, in fact, the trustees and Veeravva had disagreed and that the provisions of para. 4 were given effect to. Paragraph 12 of the will also showed that if the adoption was invalid, the property devolved on Veeravva as in intestacy. It is clear, therefore, that the provisions of para. 4 are of no assistance to the appellant in applying the provisions of sub section (2) of section 14 of the Act. Reference was also made to the contents of the agreement, Exbt. D 25, dated September 18, 1942, in this connection. It is clear. ' however, that by this agreement no estate was conferred on Veeravva and she did not thereby acquire any estate, much less a restricted estate. All that this document stated was that there was an agreement between the guardians of the boy to be adopted and Veeravva that even if the boy is adopted, Veeravva would remain in possession and enjoyment of her husband 's estate during her life time. In our opinion, there is 979 no material on the record by which it can reasonably be said that the provisions of sub section (2) of section 14 of the Act applied to the present case. It was urged that the act of Veeravva in adopting the second defendant was to bring in a stranger and this action of hers could be questioned by a reversioner, as any alienation made by her, during her life time. Reference was made to section 42 of the Specific Relief Act, Illustration (f). In our opinion, this is of no avail to the appellant, because Illustration (f) obviously refers to a Hindu widow 's estate and has no reference to a full owner. The right of a reversioner as one of the heirs under section 42, Specific Relief Act, is limited to the question of preserving the estate of a limited owner for the benefit of the entire body of reversioners; but as against a full owner, the reversioner has no such right. In our opinion, under the Act Veeravva becoming a full owner of her husband 's estate, the suit could not succeed and the appeal must accordingly fail. In our opinion, the appellant 's suit was not maintainable, having regard to the provisions of section 14 of the Act, even if it be assumed that there was no valid adoption of the second defendant. The appeal accordingly fails and is dismissed with costs. Appeal dismissed.

Sub section (1) of section 14 Of the , provided: " Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner." A suit instituted by the nearest reversioner of K for a declaration that the adoption made by K 's widow was invalid, was dismissed and during the pendency of the appeal filed against the decree dismissing the suit, the , came into force. At the hearing of the appeal the respondent raised the preliminary objection that even if the adoption were held to be invalid, the appellant 's suit must fail in view of the provisions of section 14 Of the Act under which K 's widow, who was a party to the suit and the appeal, would be entitled to a full ownership of her husband 's properties, while it was urged for the appellant that section 14 Of the Act did not apply to the facts of the case because the properties were not in, the possession of K 's widow, but were only with the adopted son at the time the Act came into force. Held, that the word "possession" in section 14 Of the , is used in the widest connotation and it may be either actual or constructive or in any form recognised by law. 969 Gostha Behari vs Haridas Samanta, A.I.R. 1957 Cal. 557, approved. In the present case, if the adoption was invalid K 's widow would be the full owner of K 's estate, and even if it be assumed that the adopted son was in actual possession of the estate, his possession was merely permissive and K 's widow must be regarded as being in constructive possession of it through him. Accordingly, section 14 was applicable and as K 's widow became a full owner of her husband 's estate, the appellant 's suit was not maintainable.

: Civil Appeal No. 788 of 1957. Appeal by special leave from the judgment and order dated February 16, 1955, of the Bombay High Court in Income tax Reference No. 38/x of 1954. C. K. Daphtary, Solicitor General of India, R. Ganapathy Iyer and D. Gupta, for the appellant. R.J. Kolah, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondent. April 21. The Judgment of section K. Das and Kapur, JJ., was delivered by section K. Das, J. Hidayatullah, J., delivered a separate Judgment. S.K. DAS, J. This is an appeal by special leave from the judgment and orders of the High Court of Bombay dated February 16, 1955, in a reference under section 66(1) of the Indian Income tax Act, 1922, hereinafter called the Act. The reference was made in the following circumstances : The Hindu undivided family of one Gandalal carried on business in cloth in Wadhwan in Kathiawar, which at the relevant time was outside British India. The family consisted of Gandalal and his four sons, (1) Girdharlal, (2) Hansraj, (3) Nandlal and (4) Ramniklal. In 1944 Nandlal came to Bombay and started a cloth business in partnership with other persons, the partnership being known as Amulakh Amichand & Co. 623 Nandlal 's share in the partnership was ten annas and that of his three partners, who belonged to the family of Amulakh Amichand, six annas. It was stated that the family of Amulakh Amichand which was a well known business family of Bombay, did not supply any capital to the partnership and Nandlal alone was the financing partner. On April 13, 1944, Nandlal received a sum of Rs. 50,000 from the Hindu undivided family of which he was a member, and a further sum of Rs. 50,000 on April 27, 1944. Two other sums aggregating to Rs. 50,000 were also received from the Hindu undivided family on June 8, 1944, and June 29, 1944. The case of the assessee was that a sum of Rs. 1,00,000 was given to each son by the father and the sums of money received on June 8, 1944, and June 29, 1944, were a loan by the Hindu undivided family to Nandlal. Therefore, the case of the assessee was that Nandlal became the partner of the firm of Amulakh Amichand in his individual capacity. The case of the Department, however, was that the total sum of Rs. 1,50,000 sent to Nandlal by the Hindu undivided family was utilised as capital in the cloth business of the partnership known as Amulakh Amichand & Co. Subsequently, Girdharlal, another brother of Nandlal, came to Bombay and joined the firm. Out of the share of ten annas of Nandlal, Girdharlal was given a share of five annas. The partnership firm of Ainulakh Amichand & Co. then started a cloth business at Banaras, and the partners of the firm at Banaras were the partners of the Bombay firm of Amulakh Amichand & Co. and an outsider from Banaras. A third brother of Nandlal also joined the Banaras firm, but he did not bring any capital. For the assessment year 1945 46 the Income tax Officer held that the Hindu undivided family of Gandalal was resident in the taxable territories (namely, British India), and hence he included the sum of Rs. 1,50,000 in the income of the family under section 4(1) (b)(iii) of the Act as having been brought into or received in British India in the relevant year and made an assessment on that basis. The assessee appealed to the Appellate Assistant Commissioner, Bombay, but without success. Then, there " as an, 624 appeal to the Income tax Appellate Tribunal, Bombay. Two questions were raised before the Tribunal: " (1) Whether Nandlal represented the Hindu undivided family of Gandalal of Wadhwan now in Saurashtra, in the firm Amulakh Amichand & Co., Bombay, and later on in the firms Amulakh Amichand & Co., Bombay and Banaras. (2)Whether the Hindu undivided family of Gandalal was resident in the taxable territories in the relevant years of account. " The Tribunal held on the first question that Nandlal and later Girdharlal joined the Bombay firm and also the Banaras firm of Amulakh Amichand & Co. as representing the Hindu undivided family of Gandalal and the money for starting the Bombay business came from the Hindu undivided family. Accordingly, the Tribunal held that Nandlal was properly assessed in the status of a Hindu undivided family. On the second question the Tribunal held in favour of the assessee and came to the following conclusion: " The business at Bombay and later on the business at Banaras cannot, in our opinion, be considered to be the affairs of the Hindu undivided family of Gandalal. These two businesses belonged to two separate entities, namely, the Bombay firm of Amulakh Amichand & Co., and the Banaras firm of Amulakh Amichand & Co. True, the Hindu undivided family would in due course of time receive a share of profit from these two firms, but all the same we do not think that it could be said that the firms of Bombay and Banaras constituted the affairs of the Hindu undivided family. The businesses in Bombay and Banaras, according to the Partnership Act, belonged to Nandlal and others. We are, therefore, of opinion that for assessment years 1945 46 . the Hindu undivided family was not resident in the taxable territories." The actual relief which the Tribunal gave to the assessee was expressed in the following words: " For the assessment year 1945 46, the assessee 's status would be Hindu undivided family but non resident. In so far as the assessed income is concerned the sum of Rs. 1,50,000 which was included under section 4(1)(b)(iii) has to be deleted. The rest of the 625 income accrued to the Hindu undivided family in the taxable territories. " At the instance of the Commissioner of Income tax, Bombay, who is the appellant before us, the Tribunal stated a case and referred the following question of law to the High Court of Bombay for its decision under section 66(1) of the Act. The question was in these terms : "Whether the Hindu undivided family of Gandalal represented by Nandlal in the firm of Amulakh Amichand & Co. of Bombay was resident in the taxable territories in the year of account relevant for the assessment year 1945 46. " The answer to the question depended on the true scope and effect of section 4A(b) of the Act. The High Court held that the expression " the affairs of the Hindu undivided family " in section 4A(b) did not have reference to the private or domestic affairs of the family, but referred to affairs concerned with income and taxation thereon. It said: " We might put the matter in this way that when a coparcener carries on business in partnership on behalf of the Hindu undivided family, the affair is of the coparcener and not of the family, but when the business is carried on by the family itself then it is the affair of the family and not of the coparceners." "The result is that we must agree with the view taken by the Tribunal and we must answer the question submitted to us in the negative." After the decision of the High Court the appellant obtained special leave and has come to us in pursuance of special leave granted by this Court. We must make it clear at the very outset that the first question raised before the Tribunal and decided by it against the assessee does not now fall for consideration. Whatever income Nandlal and Girdharlal received from the two businesses at Bombay and Banaras was income in their hands of the Hindu undivided family. With that income we are not now concerned. We are concerned with the second question, namely, whether the Hindu undivided family of Gandalal was resident in the taxable territories in the 626 relevant year so as to make the sum of Rs. 1,50,000 taxable under section 4 (1) (b) (iii) of the Act on the basis of such residence. Clearly enough, if the Hindu undivided family of Gandalal was not resident in the taxable territories in the relevant year, the sum of Rs. 1,50,000 would not be taxable under section 4 (1) (b) (iii) of the Act. We must, therefore, keep in mind the narrow scope of the question before us, which is whether the Hindu undivided family of Gandalal could be said to be resident in the taxable territories (i. e., British India) in the relevant year under the provisions of section 4A(b) of the Act, even though the family carried on its own cloth business wholly outside the taxable territories. It is necessary as well as convenient to read section 4A(b) at this stage : "4A. For the purposes of this Act (b)a Hindu undivided family, firm or other association of persons is resident in the taxable territories unless the control and management of its affairs is situated wholly without the taxable territories." In V. V. R. N. M. Subbayya Chettiar vs Commissioner of Income tax, Madras(1) this Court held that the test for deciding the residence of a Hindu undivided family laid down in section 4A (b) of the Act was based very largely on the rule which had been applied in England to cases of corporations, and though normally a Hindu undivided family would be taken to be resident in British India, such presumption would not apply if the case could be brought under the second part of the provision. It was also observed therein that the word " affairs " must mean affairs which are relevant for the purpose of the Income tax Act and which have some relation to income ; it was stated that in order to bring the case under the exception, the court has to ask whether the seat of the direction and control of the affairs of the family is inside or outside British India, and the word " wholly " suggests that a Hindu undivided family may have more than one "residence" in the same way as a corporation may have. The position in Hindu law with regard to a coparcener, even when he is the Karta, entering into partnership (1) ; 627 with others in carrying on a business is equally well settled. The partnership that is created is a contractual partnership and will be governed by the pro . visions of the . The partnership is not between the family and the other partners; it is a partnership between the coparcener individually and his other partners (see Kshetra Mohan Sannyasi Charan Sadhukhan vs Commissioner of Excess Profits Tax, West Bengal) (1). The coparcener is undoubtedly accountable to the family for the income received, but the partnership is exclusively one between the contracting members, including the individual coparceners and the strangers to the family. On the death of the coparcener the surviving members of the family cannot claim to continue as partners with strangers nor can they institute a suit for dissolution of partnership ; nor can the stranger partners sue the surviving members as partners for the coparcener 's share of the loss. Therefore, so far as the partnership is concerned, both under Partnership law and under Hindu law, the control and management is in the hands of the individual coparcener who is the partner and not in the family. Now, it is undisputed that but for the partnership business at Bombay or Banaras the Hindu undivided family of Gandalal was not resident in the taxable territories in the relevant year. The point for decision, therefore, is does the existence of the said partnership establish the residence of the family ? This raises two questions before us: firstly, whether the firm of Amulakh Amichand & Co. is one of the affairs of the Hindu undivided family of Gandalal because that is the only affair which has relation to the income sought to be taxed and on which the appellant relies for determining the residence of the family; secondly, where the control and management of the said affair, looked at from the point of view of the Hindu undivided family, is situate. We think that in the context of the facts found in the case, these two questions are interlinked. The expression " control and management " under section 4A(b) signifies controlling and directive power, "the head and brain" 628 as it is sometimes called. Furthermore, it is settled, we think, that the expression control and management " means de facto control and management and not merely the right or power to control and manage (see B. R. Naik vs Commissioner of Income tax (1)). It is also quite clear, we think, that if a coparcener becomes a partner (on behalf of the joint family) with strangers in a firm which carries on business in the taxable territories, that by itself will not determine the residence of the family unless the control and management of the firm is at least, in part, in the Hindu undivided family. On the facts of this case, the Hindu undivided family or for that matter, the Karta of that family, that is Gandalal, could exercise no power of controlling management over the partnership firm, either under Partnership law or under Hindu law. It seems to us that the word " affairs " in section 4A(b) must mean affairs of a Hindu undivided family which are capable of being controlled and managed by the said Hindu undivided family as such. Where a coparcener enters into partnership with strangers, the Hindu undivided family exercises no controlling power of management over the partnership firm. In that view of the matter the partnership firm cannot be an " affair " of the Hindu undivided family capable of being controlled and managed by the Hindu undivided family as such. It may be here observed that the decision in V. V. R. N. M. Subbayya Chettiar vs Commissioner of Income tax, Madras (2) proceeded on the basis of onus only and as was specifically stated therein, it was confined to the year of assessment to which the case related and it was left open to the appellant of that case to show in future years by proper evidence that the seat of control and management of the affairs of the family was wholly outside British India. In the case before us the Tribunal no doubt found on the first question raised before it that Nandlal and Girdharlal joined the Bombay and Banaras firms as coparceners of the Hindu undivided family and the money for starting the business came from the Hindu undivided family. That finding by itself however does not determine the residence of the (1) [1946]4 1.T.R. 324. (2) ; 629 Hindu undivided family of Gandalal. Both under Hindu law and Partnership law the Hindu undivided family as such could exercise no control and management over the two businesses at Bombay and Banaras. These businesses belonged to the partners and on the facts found in this case, it cannot be said that the businesses were the affairs of the Hindu undivided family of Gandalal within the meaning of section 4A(b) of the Act. We agree with the High Court that the position would be different if the Hindu undivided family itself carried on the business as its own business. In that case the business would be an affair of the family, because the family would be in control and management of the business. At first sight it may appear paradoxical that the income from the two businesses at Bombay and Banaras in the hands of Nandlal and Girdharlal should be treated as income of the Hindu undivided family and at the same time it should be hold that the two businesses were not the affairs of the Hindu undivided family within the meaning of section 4A(b) of the Act. There is really no paradox because the place of accrual of income of such family and the place of its residence need not necessarily be the same under the Act. Residence under section 4A(b) of a Hindu undivided family is determined by the seat of control and management of its affairs, and in the matter of partnership business in British India the Hindu undivided family as such had no connexion whatsoever with its control and management. If the seat of control is divided, the family may have more than one place of residence; and unless it is wholly outside the taxable territories, the family will be taken to be resident in such territories for the purposes of the Act. But whereas in this case in respect of the partnership business, the family as such has nothing to do with its control and management, we fail to see how the existence of such a partnership will determine residence of the family within the meaning of section 4A(b), Therefore, we are of the opinion that the High Court correctly answered the question, The appeal fails and is dismissed with costs, 82 630 HlDAYATULLAH, J. The Commissioner of Incometax, Bombay City, has filed this appeal, after obtaining special leave from this Court, against the judgment and order of the High Court of Bombay dated February 16, 1955, in a Reference under section 66(1) of the Indian Income tax Act. By the judgment under appeal, the High Court (in agreement with the decision of the Income tax Appellate Tribunal, Bombay, given earlier) answered in the negative the following question: " Whether the Hindu undivided family of Gandalal represented by Nandlal in the firm of Amulakh Amichand & Co. of Bombay was resident in the taxable territories in the year of account relevant for the assessment year 1945 46. " The facts briefly stated are as follows: There was in Wadhwan State in Kathiawar a Hindu undivided family consisting of Gandalal and his four sons, Girdharlal, Hangraj, Nandlal and Ramniklal. This family was doing business in cloth. In 1944 Nandlal went to Bombay and started on April 25, 1944, a cloth business in partnership with three strangers, known as Amulakh Amichand & Co. Nandlal 's s`are was ten annas, and that of his three partners, six annas. All the capital of the new firm was supplied by Nand lal, and for this purpose he received two remittances of Rs. 50,000 each on April 13 and 27 in the year 1944 and two other remittances aggregating to Rs. 50,000 on June 8 and 29 in the same year. Thus, a total sum of Rs. 1,50,000 was sent from Wadhwan to Bombay. Subsequently, Girdharlal also went to Bombay and joined Amulakh Amichand & Co. and he was given five annas ' share out of Nandlal 's share of ten annas. In 1946 Amulakh Amichand & Co. started another firm at Banaras under the same name. The partners of the Banaras firm were the partners of the firm at Bombay, an outsider from Banaras and a third brother of Nandlal. He did not bring any capital, and presumably received a share along with his other two brothers. For the assessment year 1945 46 the Income tax Officer treated the Hindu undivided family as resident in British India under section 4A(b) of the Indian Incometax Act, and assessed the family after adding the sum of Rs. 1,50,000 to the income from the firm of 631 Amulakh Amichand & Co., Bombay. The appeal to the Appellate Assistant Commissioner failed. On further appeal, the Appellate Tribunal, Bombay, held that Nandlal was still a coparcener and not a separated member, because the partition which was set up by him was not meant to be acted upon. The Tribunal, however, held that the decision of the Income tax Officer and the Appellate Assistant Commissioner that the Hindu undivided family was resident in British India in the relevant account year was not sound. The Appellate Tribunal therefore, ordered that the sum of Rs. 1,50,000 included under section 4(1)(b) (iii) of the Income tax Act could not be included and must be deleted. According to the Tribunal, the business at Bombay and later the business at Banaras could not be considered to be I the affairs of the Hindu undivided family of Gandalal ', so as to bring the matter within section 4A(b) of the Act. The Appellate Tribunal held that these two businesses belonged to 'different entities ', namely, the Bombay and Banaras firms, and that these firms could not be said to be " the affairs of the Hindu undivided family " but the affairs of Nandlal and his brothers under the law of Partnership. At the instance of the assessee, the Tribunal referred the above question for the opinion of the High Court. The Bombay High Court referred to the decision of this Court in V. V. N. M. Subbayya Chettiar vs Commissioner of Income tax, Madras (1), and pointed out that by the expression " the affairs of the Hindu undivided family " was meant not the private or domestic affairs of the family but some affairs, which had some reference to the Income tax Act. The word " affairs " must, it was held, be construed in relation to taxation. The learned Judges then referred to the position of a coparcener entering into partnership with strangers, and observed that when a coparcener carried on such business in partnership on behalf of the Hindu family, " the affair " was of the coparcener and not of the family, but when the business was carried on by the family itself, then it was " the affair " of the family and not of the coparcener or coparceners. They pointed out that in the cited case Fazl Ali, J., seemed to have held that even though a partnership (1) ; 632 business might be an 'activity ' of the Hindu family, it would not be " the affair " of the Hindu family in the sense in which the expression was used in the Indian Income tax Act. They, however, held that it did not follow that every activity of a coparcener or of a Karta, even if the activity resulted in profit, became " the affair " of the Hindu undivided family. Thus, treating the business of Amulakh Amichand & Co. as " the affair " of the coparceners concerned and not of the Hindu undivided family, the High Court in agreement with the opinion of the Appellate Tribunal, answered the question in the negative. Before dealing with the arguments addressed in the case and the interpretation of the relevant provision, it will be useful to summarise the findings. It is found that the Hindu undivided family did riot disrupt and partition the assets. Nandlal and Girdharlal continued to be coparceners, and the sum of Rs. 1,50,000 represented the funds of the Hindu undivided family. There is no finding that besides the entering into partnership by some of the coparceners with outsiders, there was, in the taxable territories, any other business. There is also no finding by the Tribunal that no part of the control and management was exercised in British India, though the High Court did find this to be so. We are concerned in this case with the application of section 4A(b), which deals with 'residence ' in the taxable territories, of Hindu undivided family, firm or other association of persons. Before the present amendment, the section read as follows: 4A. For the purposes of this Act . . . . . (b)a Hindu undivided family , firm or other association of persons is resident in British India unless the control and management of its affairs is situated wholly without British India. The words " British India " have now been replaced by the words " taxable territories " ; but the reasoning applicable to them is the same. The section was plain in so far as its intent and purpose was concerned. It made a Hindu undivided family resident in British India, unless the control and management of its affairs 633 was situated wholly without British India. If the control and management was wholly or partly situated in British India, then the family was treated as a resident. The words " wholly without British India " showed that even if a part of the control and management, be it ever so small a part, was exercised in British India, the provision was satisfied. So far, there is no dispute, and it is further clear that the St affairs " of the Hindu undivided family refer to something connected with the law of Income tax. The section does not refer to the domestic or private affairs of the Hindu undivided family. It refers to an activity resulting in the making of income. Parties are agreed and I think rightly that this aspect of the law is clear and unambiguous. It is also settled after the decision of this Court in Subbayya Chettiar 's case (1). Parties are, however, at variance, when one comes to the interpretation of the words " its affairs " in the section, and tries to find the situs of the control and management. In cases where the Hindu undivided family itself or through its Karta controls and manages business in the taxable territories, no difficulty arises; but where, as here, the Hindu undivided family is represented by one of its coparceners as a partner in a firm, one faces some difficulties. Two questions then arise, which are: (a)Is there any " affair" of the Hindu undivided family in the taxable territories in such circumstances;. and (b)Is the fact that the coparcener controls and manages the partnership, wholly or partly, sufficient to enable one to say that the control and management of the family is located in the taxable territories ? Now, it is settled law that a Hindu undivided family cannot be a partner under the law of Partnership. Such of the coparceners who join the partnership are regarded quoad the other partners, as individuals in their own names and rights. Yet, the benefits that arise to them from the partnership belong to the family, and their rights are the asset of the family. We have recently held in Charandas Haridas V. com missioner of Income tax, Bombay (2) that in such a situation the matter has to be looked at in the light of three (1) ; (2) [196O] 3 S.C.R. 296. 634 separate and independent branches of law. They are the law of Partnership, the Hindu law and the law relating to Income tax. The implications of a coparcener joining as partner with strangers are different when one views the matter from the angle of the law of Partnership or from the angle of the Hindu law or the law of Income tax. In so far as the law of Partnership is concerned, the coparcenary has no place in the partnership, and the coparcener partner is everything. But, viewed from the angle of Hindu law, the position is entirely different. In this connection, we have to bear in mind two principles of the law relating to a coparcenary, which are well settled. The first is contained in a well known passage in the judgment of Lord Westbury in Appovier vs Rama Subba Aiyan which reads: " According to the true notion of an undivided family in Hindu law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share. The proceeds of undivided property must be brought, according to the theory of an undivided family, to the common chest or purse, and then dealt with according to the modes of enjoyment by the members of an undivided family. " The second is equally well known, and is found stated in the judgment of Turner, L. J., in Katama Natchiar vs Rajah of Shivaganga (2) in the following words: " There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased 's life time a common interest and a common possession. " No doubt, there are other principles also which qualify those quoted, as, for example, the right of a coparcener to claim a partition, or, where such usage obtains, to alienate his interest, which give rise to the expression that the coparcener has a share. In point of Hindu law, however, a coparcener cannot claim (1) [1866] 11 M.I.A. 75, 89. (2) , 61 1. 635 any item of property or even a share of it as his own, and his dealings with the assets are, in so far as he is concerned, for the benefit of the family. The law of Income tax makes the sole test for purpose of residence of a Hindu undivided family, the existence of an a affair ' and its control and management even partly in the taxable territories. For this purpose, one may look at the actual facts, and an inference from facts in the light of Hindu law is equally open. It is thus plain that whilst in the eye of the law of Partnership the coparcener who is a co partner is everything, in the eye of Hindu law he is no more than a member of a body of owners. In attempting to find out if there is any 'affair ' of the Hindu undivided family, we can consider the matter from the point of view of Hindu law. If this is the true position of a coparcener in Hindu law, it is difficult to accept the view of the High Court and of the Tribunal that there was no 'affair ' of the family in British India. The High Court, with respect, posed the wrong question when it asked itself, " was Amulakh Amichand & Co., an affair of the family ?". That question is self evident, and the answer is 'no ' from the point of view of the law of Partnership. The proper question to ask was, as I have framed it, viz., " was there an affair of the Hindu undivided family in British India?". To search and find this 'affair ', it is not necessary to look for it within the partnership any more than to look for it in the affairs of a bank where the family keeps its money with which it does business. That this was not a mere 'activity ' but an activity involving expenditure of family funds in British India and resulting in the earning of money is admitted on all hands. The income received from the partnership belonged to the family, as is wellsettled. See Mangalchand Mohanlal, In re (1), Murugappa Chetty & Sons vs Commissioner of Income tax (2) and Kaniram Hazarimull vs Commissioner of Incometax (3 ) and the numerous cases cited there. The affair, if any, which we have to find, is not to be found within the four corners of the partnership but outside (1) (2) (3) 636 it. The partnership was only the result of the business activity of the family and evidence of it. The affair we have to find must be regulated by Hindu law and not by the law of Partnership, because a partnership is regulated by the two laws considered the other way round. The section we have to interpret speaks of the affairs of the Hindu undivided family whatever shape it may take, and the enquiry is thus limited to what is the dictate of Hindu law. It is an error to think that one can ignore a palpable conclusion of that law, and go to find the answer from the law of Partnership. Nor do I think that the decision of this Court in Subbayya Chettiar 's case (1) laid down any contrary proposition. There, the karta who visited India for a short period dealt with some matters including the starting of certain businesses. The Hindu undivided family was all the time in Ceylon, and it was held that his actions could be described as ' activities '. Indeed, the matter was not decided as to whether the " affair ', if there was one, was of the family or of the coparceners, and the case went against the assessee on the burden of proof which he had failed to discharge, to bring his case within the exception. If the karta had lived in India or some other coparcener or coparceners had stayed on permanently to manage the ' affairs ', then the question would have been considered, perhaps, differently. In this case, we are not concerned with the 'affairs ', of the firm of Amulakh Amichand & Co., but with the ' affairs ' of the Hindu undivided family. The coparceners who became partners could not say that they were not concerned with the Hindu undivided family to which they belonged and an undivided asset of which they owned in common with others. Their investing moneys, becoming partners and running the partnership, starting other partnerships were, from the view point of the coparcenary according to Hindu law, as much the affair of the rest of the family as their own. In view of what I have said, the first of the two questions posed earlier must be answered in the affirmative, that is to say, that there was an (1) ; 637 'affair ' of the Hindu undivided family in the taxable territories (then British India) in the circumstances of this case. The question then is: where was the control and management of the Hindu undivided family located ? If it was wholly located without the taxable territories (then British India), then the family would be nonresident. The burden was on the assessee to establish this, and we were not shown any evidence in this behalf. The question can be decided here also on the burden of proof alone, as was done in Subbayya Chettiar 's case (1). It need not, however, be decided on that narrow issue for reasons ' which will presently appear. Section 4A deals with residence of an individual at one end and of a corporation like the company at the other. It also deals with the residence of three entities, viz., Hindu undivided family, firm and association of persons in the remaining part. The tests for these three categories are different. Special tests have been provided for individuals, based on residence for a certain number of days. Two alternative tests have been provided for companies, the first being that the control and management of their affairs must be situated wholly within the taxable territories. Where the control is without, a company can still be taxed if its income within the taxable territories in the year of account (omitting, capital gains) is greater than its income without the taxable territories, with the same omission. The first provision is necessary, because a company can have more than one residence, its residence being where it ' keeps house and does business '. The test is reversed for a Hindu undivided family, which is non resident only if the whole of its control and management is situate without the taxable territories. The residence of the members of the coparcenary is not a relevant factor, but if control and management is exercised by them within the taxable territory, the family as a whole is treated as resident. In Subbayya Chettiar 's case (1), this Court observed that ' situated ' implies functioning somewhat permanently, though the management and control may be exercised (1) ; 83 638 in more than one place. To prove that management and control is within the taxable territories, something more than a casual 'activity ' is needed. The same tests also apply to a firm and an association of persons. The words 'control and management ' have been figuratively described as ' the head and brain '. In the case of an individual, the test is not necessary, because his residence for a certain period is enough, it being clear that within the taxable territories be would necessarily bring his ' head and brain ' with him. The ' head and brain ' of a company is the Board of Directors, and if the Board of Directors exercised complete local control, then the company is also deemed to be resident. In the case of firms, association of persons and Hindu undivided family, the control and management can be exercised by one or more of the group. So long as this control and management (even partly) is found, and it must be so when some coparceners reside in British India and manage the affair, the family must be treated as resident. The necessity for the test is thus obvious. The Income tax law anticipated that control and management of the affairs of Hindu undivided families (firms and association of persons), might easily be in two or more places, one or more coparceners being within the taxable territories and the other or others, without. To prevent the escape of tax and to get at the income of such families having multiple places of control and management, it was provided that the whole of the control and management must be without the taxable territories to avoid the implication of residence. Otherwise, different coparceners can manage different businesses in the taxable territories and the family cannot be regarded as resident if the karta lived outside, an anomaly which does not really arise. In the present case, can one say that the control and management was wholly without the taxable territories (then, British India,) ? If one goes by the case set up by the assessee, one finds that the clam was that there was a partition in the family and that Nandlal came to 639 Bombay as a separated member. This claim involves the admission that the affairs, such as they were, were not controlled from Wadhwan. Since, however, the case of partition pleaded by the assessee was not accepted, it might be held that the family at Wadhwan was, perhaps, also in control. But it is equally clear that a part of the control of the affairs of the family was done in British India by those coparceners, who became partners in the business and through whom and not directly from Wadhwan the partnership business at Bombay was run to the benefit of the family. Those partners who were also coparceners of the family arranged to start this business at Bombay and stayed on and managed it; they started a fresh business at Banaras, admitted a stranger as partner at the new place and presumably supplied capital from the Bombay firm or from the family ' coffers. There is no claim at all that they supplied their own separate funds. All these actions were acts of control and management. They were not casual but permanent in character. Thus,the control and management of family affairs vis a vis the partnership was being done by them. The coparceners who Januslike face two ways, cannot shelter behind the law of Partnership, and claim that their action had no reference to the 'affairs ' of the family, which was at their back. I am not equating the affairs of the partnership with the affairs of the family. But the entire business involved a family undertaking, and those affairs were being managed in British India. This control and management of the businesses was, in fact, and for purposes of the law of Income tax, control and management of the ' affairs ' of the Hindu undivided family within British India, and the family must, therefore, be regarded as resident in the accounting year within British India. In my judgment, the decision of the Bombay High Court, with respect, was erroneous. The answer to the question ought to have been in the affirmative. I would, therefore, dissolve the answer given by the Bombay High Court, and instead, would answer the question in the affirmative. I would also order that 640 the respondent bear his own costs and pay those of the appellant here and throughout. ORDER OF COURT. In accordance with the majority judgment of the Court, the appeal is dismissed with costs. Appeal dismissed.

N, a coparcener of the Hindu undivided family of G, carrying on business in Kathiwar, then outside British India, entered into a partnership with strangers in Bombay in 1944. A total sum of Rs. 1,,50,000 was remitted to N from the undivided family 621 funds and utilised as capital in the partnership business. N 's brother joined the partnership in Bombay. The partnership started another firm in Banaras and a third brother of N joined the firm. For the year of assessment 1945 46 the Income tax Officer held that the Hindu undivided family of G was resident in the taxable territories and included the said sum in the income of the family under section 4(1)(b)(iii) of the Indian Income tax Act, 1922, as having been brought into or received in British India in the relevant year and made the assessment on that basis. On appeal by the assessee the Appellate Assistant Commissioner affirmed the assessment but the Income tax Appellate Tribunal holding that in the year of assessment the family was not resident in the taxable territories deleted the said sum from the assessed income. The decision of the Appellate Tribunal was upheld by the High Court in a reference under section 66(1) of the Act made at the instance of the appellant: Held (per section K. Das and J. L. Kapur, jj.), that the expres sion 'control and management ' occurring in section 4A(b) of the Indian Income tax Act means de facto control and management and the word " affairs " means the affairs of the Hindu un divided family capable of being controlled and managed by the said family as such. It is well settled that a Hindu undivided family cannot exercise any controlling power of management of a partnership entered into by a coparcener with strangers either under the , or under the Hindu law. The partnerships in the instant case could not, therefore, constitute affairs of the Hindu undivided family within the meaning of section 4A(b) of the Act, although the incomes from the said partnerships might belong to the said family, and could not determine its residence. The place of accrual of income of a Hindu undivided family and the place of its residence need not necessarily be the same under the Indian Income tax Act, 1922. V.V. R. N. M. Subbayya Chettiar vs Commissioner of Incometax, Madras, ; , Kshetra Mohan Sannyasi Charan Sadhukhan vs Commissioner of Excess Profits Tax, West Bengal, and B. R. Naik vs Commissioner of Income. tax, , referred to. Per Hidayatullah, J. Under section 4A(b) of the Indian Incometax Act, what are really affairs of the Hindu undivided family must be decided in the light of the Hindu law, and not the law of Partnership. It is well settled that a coparcener of a Hindu undivided family cannot claim any item of property or share of his own and, consequently, where certain coparceners enter into partnerships with strangers by investing capital from out of the undivided family funds, as in the instant case, the income from the business must belong to the undivided family. Where the Hindu undivided family enters into a business activity in the taxable territories through its coparceners, invests money and earns income, even though the partnership which results may not be an 81 622 " affair " of the family, there is still a business activity resulting in the partnership and the partnership is the evidence of that business activity. This activity of a permanent character is sufficient for purposes of income tax law to constitute an ,,affair" of the family within the meaning of section 4A(b) of the Indian Income tax Act. Approvier vs Rama Subba Aiyan, [1866] 11 M.I.A. 75, Katama Natchiar vs Rajah of Shivaganga, , Mangalchand Mohanlal, Inre, , Murugappa Chetty & Sons vs Commissioner of Income tax, and Kaniram Hazarimull vs Commissioner of Income tax, , referred to. V.V. R. N. M. Subbayya Chettiar vs Commissioner of Income tax, Madras, ; , considered. Control and management, in the case of a Hindu undivided family, can be exercised by one or more of its coparceners, even though partly, and if such coparceners reside in the taxable territories and manage its affairs, the family must be treated as resident in such territory.

Civil Appeal Nos. 1299 A to 1303 of 1973 From the Judgment and order dated the 3rd February, 1972 of the Andhra Pradesh High Court in case referred No. 61 of 1970 section T. Desai, M. N. Tandon and Miss. A. Subhashini for the Appellant. A. Subba Rao, for the respondent. The Judgment of the Court was delivered by PATHAK, J. These appeals by special leave are directed(. against the judgment of the High Court of Andhra Pradesh disposing of a reference under Sub section (1) of section 256 of the Income tax Act, 1961 on the following questions of law: 1. Whether on the facts and in the circumstances of the case, the Appellate Tribunal was justified in concluding that the charging of interest indicated that the Income tax officer was satisfied that there was sufficient cause for delay in filing the return of income ? 2. Whether on the facts and in the circumstances of the case, the Tribunal was justified in cancelling the penalties levied under section 271 (1) (a) ? The respondent assessee is a partner in the firm, M/s Manik Rao & Brothers. He filed voluntary returns for the assessment years 1959 60, 1960 61, 1961 62 and 1962 63, all on August 2, 1963. The return for the assessment year 1963 64 was filed on August 2, 1964. On account of the delay in filing the returns the Income Tax officer treated the assessee as being in default and imposed penalties under cl. (2) of Sub section (1) of section 271 of the Act. In appeal before the Appellate Assistant Commissioner of Income Tax the assessee contended that as the returns had been furnished before the end of four years from the end of the relevant assessment years, that is to say, the period prescribed by Sub section (4) of section 139 of the Act, he was not liable to any penalty. It was also pointed out by the assessee that interest had been levied under clause (iii) of the proviso to Sub section (1) of section 139 and, therefore, no question arose of imposing a penalty. Both contentions were rejected by the 218 Appellate Assistant Commissioner. In second appeal before the A income Tax Appellate Tribunal the assessee raised substantially the same contentions. The Appellate Tribunal took the view that in cases falling under Sub section (1), Sub section (2) and Sub section (4) of section 139 the Income Tax officer was empowered to grant time for filing a return. and on such time being granted the assessee would be liable to pay interest. It pointed out that the assessee had in fact given his reasons for the delay in filing the returns 'both for the purpose of levy of interest under cl. (1) of section 139 and also the levy of penalty under cl. (a) of Sub section (1) of section 271". It held that as the Income Tax officer had levied interest upto the date of the filing of the returns it must be presumed that the Income Tax officer had extended the time for filing the returns after satisfying himself that it was a case for extension of time. The presumption was founded in the principle that an officer entrusted with a judicial or quasi judicial duty must be presumed to have discharged his duties in a proper and bona fide manner. The appellate Tribunal allowed the appeals and cancelled the penalties. At the instance of the Commissioner of Income Tax, the Appellate Tribunal made a reference to the High Court of Andhra Pradesh. The High Court held that the Appellate Tribunal was justified in relying upon the presumption that official acts had been regularly performed, and that therefore it must be presumed that the Income Tax officer had extended the time upon grounds made out by the assessee, because otherwise the Income Tax officer could not have charged interest. Holding that no penalty was livable in the circumstances, the High Court answered the reference in favour of the assessee. To appreciate the true scope of the questions referred, it is necessary to understand the scheme enacted in section 139 of the Income tax Act, 1961. Broadly, the scheme envisages a voluntary return by the assessee under Sub section (1) of section 139, a return consequent upon a notice by the Income Tax officer under Sub section (2) of section 139 and a return in the circumstances mentioned in Sub section (4) of section 139. We are not concerned where with a return under Sub section (3) of section 139 disclosing a loss nor are we concerned with a revised return under Sub section (S) of section 139. In the case of a voluntary return, Sub section (1) of section 139 prescribes the period within which such returns must be filed. Where no return can be filed within the prescribed period, 219 the assessee is entitled to apply to the Income Tax officer for extending the date for furnishing the return. The lncome Tax officer is empowered to extend the date in his discretion. In a case covered by cl. (i) of the proviso to Sub section (1) of section 139 the period may be extended upto September 30 of the assessment year without charging any interest, and in a case covered by cl. (ii) of the proviso the period may be extended upto December 31 of the assessment year similarly without charging any interest. But where the period is extended beyond the dates mentioned in clauses (i) and (ii), then under cl. (iii), the assessee is liable to pay interest from october 1 or January I, as the case may be, of the assessment year to the date of the furnishing of the return on the amount of tax payable on the total income reduced by the advance tax paid and any tax deducted at source. Similarly, in the case of a return furnished under Sub section (2) of section 139 the Income Tax officer has power to extend the date for furnishing the return subject to payment of interest in the circumstances set forth in relation to voluntary returns under Sub section (1) of section 139. Where, however, the assessee does not furnish a return within the time allowed to him under Sub section (1) or Sub section (2) of section 139 then before any assessment is made he may, under Sub s (4) of section 139, furnish a return for any previous year at any time before the end of four assessment years from the end of the assessment year to which the return relates, and in that event the provisions of Sub cl. (iii) of the proviso to Sub section (1) of section 139 relating to payment of interest would apply to the case. Sub section (8) of section 139 was inserted by the Finance Act, 1963 with effect from April 28, 1963. It declared that notwithstanding anything contained in cl. (iii) of the proviso to Sub section (1) of section 139, it was open to the Income Tax officer, in certain prescribed cases and circumstances, to reduce or waive the interest payable by any person under any provision of section 139. It may be noted that the language of Sub section (8) of section 139 suffered material change with effect from April 1, 1971. Now, it will be apparent that delay in filing a return of income results in the postponement of payment of tax by the assessee resulting in the State being deprived of a corresponding amount of revenue for the period of the delay. It seems that in order to compensate for the loss so occasioned Parliament enacted the provision for payment of interest. It is apparent also from the language of cl. (iii) of the proviso that interest becomes payable only upon the 220 Income Tax officer acting on an application made by the assessee for the purpose and extending the date for furnishing the return. At the relevant time the proviso to Sub section (1) of section 139 read: Provided that on an application made in the prescribed manner, the Income Tax officer may, in his discretion, extend the date for furnishing the return (i) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired on or before the 31st day of December of the year immediately preceding the assessment year, and in the case of any person referred to in clause (b), up to a period not extending beyond the 30th day of September of the assessment year without charging any interest; (ii) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired after the 31st day of December of the year immediately preceding the assessment year, upto the 31st day of December of the assessment year without charging any interest; and (iii) up to any period falling beyond the dates mentioned in clauses (i) and (ii), in which case, interest at nine per cent per annum shall be payable from the 1st day of October or the 1st day of January, as the case may be, of the assessment year to the date of the furnishing of the return (a) in the case of a registered firm or an unregistered firm which has been assessed under cl. (b) of section 183, on the amount of tax which/would have been payable if the firm had been assessed as an unregistered firm, and (b) in any other case, on the amount of tax payable on the total income, reduced by the advance tax, if any paid or by any tax deducted at source, as the case may be," It is only where the Income Tax officer extends the time for 221 furnishing the return beyond September 30 or December 31, as the case may be, that interest becomes payable. Now the contention on behalf of the Revenue is that there is no material to warrant the finding that an application had been made by the assessee for extension of time and that upon such application the Income Tax officer extended the time. It is urged that the imposition of interest does not warrant the assumption that an application for extension of time was made by the assessee and allowed by the Income Tax officer. The proviso to Sub section (1) of section 139 requires the assessee to make an application for extension of time in the prescribed manner, and the prescribed form of the application set forth is Form No. 6 pursuant to rule 13 of the Income Tax Rules, which requires the assessee to state the reasons on which the extension of time is sought. All this, learned counsel contends, contemplates that the Income Tax officer should apply his mind to relevant material before him before deciding, in his discretion, whether the time should be extended. Learned counsel, however, has not been able to satisfy us why the presumption raised by the Appellate Tribunal, and endorsed by the High Court, should not prevail. It cannot be disputed that the Income Tax officer could extend the date for furnishing the return in respect of each assessment year. It was open to him to do so under the statute, and he was entitled to charge interest only on the basis that the extended period fell beyond September 30 or December 31, as the case may be. In the ordinary course of things, the Income Tax officer could have extended the date only upon being satisfied that there was good reason for doing so, and that would have been on grounds pleaded by the assessee. We consider that in the circumstances of this case a presumption could validly be raised that all that was done. No attempt was made by the Revenue to show that the Income Tax officer acted arbitrarily and contrary to the procedure envisaged by the statute. The Appellate Tribunal considered the matter carefully and found circumstances on the record in favour of raising the presumption. The High Court approved of the approach adopted by the Appellate Tribunal] and did not find it contrary to law. We do not see any reason to differ from the opinion expressed by the High Court. In the instant case, the extension was a matter falling within Sub section (1) of section 139, and the returns furnished by the assessee must be attributed to that provision. They were not returns furnished 222 within the contemplation of Sub section (4) of section 139. Therefore, the decision of the Gujarat High Court in Additional Commissioner of Income Tax, Gujarat vs Santosh Industries,(l) of the Karnataka High court in M. Nagappa and others vs Income Tax officer, Central Circle l, Bangalore and others,(a) of the Andhra Pradesh High Court in Poorna Biscuit Factory vs Commissioner of Income Tax, A.P.,(3) of the Orissa High Court in Commissioner of Income Tax, Orissa V. Gangaram Chapolia,(4) and of the Allahabad High Court in Metal India Products vs Commissioner of Income Tax, Lucknow( ') cannot be invoked in the instant case. They are cases dealing with a return filed in the circumstances mentioned in Sub section (4) of section 139. our attention has also been drawn to the decision of this Court in Commissioner of Income Tax, Punjab vs Kulu Valley Transport Co. P. Ltd.(") That was a case where the returns were filed under Sub section 3 of section 22 of the Indian Income Tax Act, 1922. They were not returns furnished within the time allowed by or under Sub section (1) or Sub section (2) of section 22 of that Act. Accordingly, that case also need not be considered. In the result, we uphold the answer returned by the High Court to the first question raised in the reference. The second question raises the point whether the Appellate Tribunal was justified in cancelling the penalties levied under cl. (a) of Sub section (1) of section 271. That provision reads: "271 (1) If the Income Tax officer or the Appellate Assistant Commissioner in the course of any proceedings under this Act, is satisfied that any person (a) has without reasonable cause failed to furnish the return of total income which he was required to furnish under Sub section (1) of section 139 or by notice given under Sub section (2) of section 139 or 9. 148 or has without reasonable cause failed to furnish it within the time (1) [l974] (2) (3) (4) (5) (6) 223 allowed and ni the manner required by Sub section (1) of section 139 or by such notice, as the case may be, or A b) . (c) . . . . . . . . . ._ he may direct that such person shall pay by way of penalty, (i) . . . . . . . . . _ (ii) . . . . . . . . . (iii). . . . . . . . . . It is clear that penalty is attracted if the Income Tax officer is satisfied that assessee has, without reasonable cause, failed to furnish the returns "within the time allowed". The time allowed for furnishing a voluntary return is the time specified in Sub section (1) of section 139. We have seen that the proviso to that sub section empowers the Income Tax officer to extend the date for furnishing the return. It was open to Parliament to specify by express enactment the date by which a return must be filed, and also confer power on the Income Tax officer to extend the date for doing so. When the Income Tax officer extends the date, he does so in the exercise of authority conferred by the statute, and the additional time available to the assessee consequent upon such extension is, for all relevant purposes, of the same character and as effective as the statutory period specifically enacted by Parliament. For the purpose of furnishing a return it constitutes an integral part of the time allowed for furnishing a return. Therefore, where the Income Tax Officer extends the date, then all the time upto that date is the time allowed for furnishing the return. The additional period consequent upon such extension falls within the expression "the time allowed" in cl. (a) of Sub section Of section 271. That being so, the conclusion must follow that the penalty provision does not come into play at all. In our opinion, the High Court was right in answering the second question also in favour of the assessee. We express our agreement with the opinion of the High Court a on both the questions referred to it. Accordingly, these appeals fail and are dismissed with costs. H.S K. Appeal dismissed.

The respondents agreed to deliver 61 bales of cloth to the appellant by the 17th November, 1941. The agreement provided "we shall continue sending the goods as soon as they are prepared to you up to Magsar Badi 15, Sambat 1998 . We shall go on supplying goods to you of the Victoria Mills as soon as they are supplied to us by the said Mills . We shall go on delivering the goods to you . out of the goods noted above which will be prepared by the Mill. " In a suit for damages for non deliv ery of the goods the respondents pleaded that as they had not received the goods from the Victoria Mills before the 17th of November, 1941, performance of the contract had become impossible by reason of an event which they could not prevent and the contract had therefore become void under Sec. 56, Indian Contract Act: Held, (i) that, on a proper construction of the con tract, delivery of the goods was not made contingent on their being supplied to the respondents by the Victoria Mills. The words "prepared by the Mills" were only a de scription of the goods to be supplied, and the expressions "as soon as they are prepared" and "as soon as they are supplied to us by the said Mill "simply indicated the proc ess of delivery. This was not therefore a case in which the doctrine of frustration of contract could be invoked. (ii) Even apart from the construction of the agreement, as the respondents had not shown that they had placed an order for the goods with the Victoria Mills and yet the Mills had failed to supply, there was a clear breach of contract to deliver and the appellant was entitled to recover damages. Harnandrai vs Pragdas (L. R. 15 I.A. 9) and British Movietone News vs London Cinemas relied on.

Civil Appeal No. 1402 of 1979. Appeal by Special Leave from the Judgment and Order dated 16 2 1979 of the Allahabad High Court in Second Appeal No. 430/70. P. C. Bhartari for the Appellant. L. M. Singhvi and Pramod Swarup for the Respondent. The Judgment of V. D. Tulzapurkar, J. and A. P. Sen, J. was delivered by Tulzapurkar, J. D. A. Desai, J. gave a dissenting Opinion. TULZAPURKAR, J. This is a tenant 's appeal by special leave directed against the judgment and decree passed by the Allahabad High Court on February 16, 1979 in Second Appeal No. 430 of 1970 whereby the High Court decreed the respondents ' (landlords) suit for ejectment against the appellant (tenant) and the only question of substance raised in the appeal is whether when the landlords ' notice demanding arrears and seeking eviction is sent by registered post and is refused by the tenant the latter could be imputed the knowledge of the contents thereof 60 that upon his failure to comply with the notice the tenant could be said to have committed willful default in payment of rent ? The question arises in these circumstances: The appellant occupied shop No. 5 in Ivanhoe Estate, situated at Landure Cantonment, Mussorie, originally owned by one Parvij Waris Rasool, on an yearly rental of Rs. 250 payable by December 31, every year. The property at all material times was admittedly governed by the U.P. Cantonment, (Control of Rent & Eviction) Act, X of 1952 a Central Act and, in my view, all the Courts below rightly dealt with the matter as being governed by that Act and not by U.P. (Temporary) Control of Rent and Eviction Act, 1947, much less by the later U.P. (Rent and Eviction) Act, 1972. The respondents purchased the aforesaid Estate form its previous owner on November 27, 1964 and the previous owner attorned the tenancy of the appellant to the respondents along with the rental due from him for the year 1964. The appellant continued to be the tenant of the shop during the years 1965 and 1966 as well but since he did not pay the rent the respondents on November 9, 1966 gave a combined notice demanding payment of arrears and seeking ejectment on termination of tenancy which was refused by him on November, 10, 1966. On his failure to comply with the requisitions contained in the notice the respondents filed a suit against the appellant seeking eviction as well as recovery of rents and mesne profits. 967 The suit was resisted by the appellant, inter alia, on the ground that the rent of the accommodation payable to the previous owner was Rs. 250 per annum less 10% rebate on account of repairs; that in 1964 at the intervention of some common friends he agreed to vacate and did surrender the residential portion of the shop comprising two rooms, one kitchen, one bath room and one varandah at the back of the shop in consideration of respondents relinquishing the rental of Rs. 250 due from him for the year 1964; that for the years 1965 and 1966 the rental for the remaining shop was reduced by agreement to Rs. 50 per annum less rebate for repairs and that he had sent a cheque for the amount due to the respondents. He denied that he has committed default in payment of rents and averred that no notice of demand and ejectment was served on him and consequently prayed for dismissal of the suit. On an appreciation of the evidence led by the parties before it the Trial Court came to the conclusion that initially the rent fixed was Rs. 250 per year but after the respondents ' purchase of the property the appellant vacated the residential portion of the shop under an agreement arrived at between the parties where under there was relinquishment of rent due for 1964 and that the rent for the main shop was fixed at Rs. 100 per annum and that no rebate of any kind had been agreed to at any time on account of repairs. Regarding the arrears of rent outstanding against the appellant the Trial Court held that rent for the years 1965 and 1966 had not been paid and was due from him but it held that the notice dated November 9, 1966 was not served on the appellant and hence he could not be held to have committed willful default in payment of arrears of rent. In this view of the matter the Trial Court dismissed the suit insofar as the relief of eviction was concerned but decreed it for arrears of rent at the rate of Rs. 100 per annum. Aggrieved by that judgment and decree the respondents filed an appeal to the District Court, Dehradun. The learned District Judge concurred with the findings of the Trial Court that the rental for the year 1964 had been relinquished and that the rental of the front portion of the shop had been fixed at Rs. 100 per annum. He further held that the notice was tendered to the appellant on November 10, 1966 but he declined to accept it and hence there was service by refusal, but in his opinion despite such service it could not be presumed that the appellant had knowledge about the contents of that notice and consequently he could not be said to have committed any willful default in the payment of rent. In the result the appeal was dismissed. The respondents preferred Second Appeal No. 430 of 1970 to the High Court. In that appeal the tenant sought to reagitate the question 968 whether or not the notice was tendered to him and was refused by him on the ground that the finding had been recorded by the District Court without application of mind to the statement on oath made by him to the effect that no postman had ever gone to him with a registered letter either on 9th or 10th November, 1966 and he had not declined to receive any registered letter but the High Court refused to entertain the contention inasmuch as it found that the learned District Judge had referred to this part of the appellant 's evidence as also the postman 's evidence on the point and that on an appreciation of such rival evidence on record he had recorded a finding that the notice was tendered to the appellant but it was refused by him; in other words in the absence of animus being attributed to the postman the District Judge had preferred the postman 's evidence to that of the appellant 'section The High Court, therefore, accepted the finding of fact recorded by the District Court that there was service of the notice on the appellant by refusal. On the further question as to whether when such refusal had been established, the appellant could be imputed with the knowledge of the contents of the notice, the High Court, following its two previous decisions in Shri Nath and another vs Smt. Saraswati Devi Jaswal and Fanni Lal vs Smt. Chironja, held that when notice was tendered to the tenant and when the latter refused to accept the same, knowledge of the contents of the notice must be imputed to him. The District Judge 's view in this behalf was thus reversed and since there was failure on the part of the appellant to pay the rent within one month of the service of notice upon him, the High Court held that he had committed willful default within the meaning of section 14(a) of the Act. Accordingly the High Court allowed the appeal and the respondents ' prayer for ejectment was granted but the appellant was given three months" time to vacate the accommodation. The tenant has come up in appeal to this Court. Counsel for the appellant vehemently contended before us that the High Court was in error in taking the view that when service by refusal had been effected the tenant must be deemed to have knowledge about the contents of the notice, for, no such presumption could be drawn especially when it was clear on evidence that neither the registered envelope was opened either by the tenant or by the postman nor the contents thereof read before the same was returned to the postman. He further urged that the envelope bore the seal of Shri section P. Singh, Advocate and the appellant could not, therefore, know that the notice was from his landlords; he also pointed out that the appellant was illiterate and did not know English and since the address on the envelope as 969 well as the seal of the lawyer were in English the appellant could not even know who the sender of the notice was. Counsel, therefore, urged that in the peculiar circumstances of the case the learned District Judge had rightly recorded a finding that the knowledge of the contents of the notice could not be imputed to the appellant and, therefore, the appellant could not be regarded as a willful defaulter in the matter of payment of rent. In support of this contention strong reliance was placed by him on the decision of the Bombay High Court in the case of Vaman Vithal Kulkarni and Ors. vs Khanderao Ram Rao Sholapurkar where the following observations of Beaumont, C. J., appear at page 251: "In case of defendants 4 and 5 a registered letter containing the notice was sent to them duly addressed, and service : is alleged to have been refused. In fact the refusal was not proved, as the postman who took the letter and brought it back was not called. But in any case, even if the refusal had been proved, I should not be prepared to hold that a register ed letter tendered to the addressee and refused and brought back unopened, was well served. There are, I know, some authorities in this Court to the contrary, but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, if the agent for service states that in fact the notice was not served, although the reason may have been that the addressee declined to accept it. One cannot assume that because an addressee declines to accept a particular sealed envelope he has guessed correctly as to its contents " Counsel also referred to some other decisions including that of the Andhra Pradesh High Court in Mahboob Bi vs Alvala Lachmiah but these other decisions do not touch the aforesaid aspect of visiting the addressee with the knowledge of the contents. Of the refused notice but have expressed the view that refusal of registered notice without more may not amount to proper service and hence it is unnecessary to consider them. But placing strong reliance upon the observations of Chief Justice Beaumont quoted above counsel for the appellant urged that the High Court ought to have confirmed the finding of the learned District Judge that the appellant could not be presumed to have known the contents of the notice or that the notice was one demanding arrears of rent simply because he refused to accept the same. On the other hand, counsel for the respondents contended before us that both under section 27 of the General clauses Act, 1897 and section 114 of 970 the Indian Evidence Act presumption of due service could arise if the notice was sent to the tenant by properly addressing the same, prepaying and sending the same by registered post and it was pointed out that in the instant case as against the denial by the appellant there was positive oath of postman (Kund Ram P.W. 2) who was examined by the respondents to prove the fact that the registered letter containing the notice was tendered to the appellant and when he declined to accept it the postman had made endorsement in his hand on the envelope "Refused. Returned to the sender". Counsel, therefore, urged that in view of such positive evidence of postman led by the respondents which had been accepted by the learned District Judge, the High Court was justified in holding that the appellant must be imputed with the knowledge of the contents of the notice. In this behalf counsel for the respondents placed reliance on the Privy Council decision in Harihar Banerji and Ors. vs Ramshashi Roy and Ors and Madras decision in Kodali Bapayya and Ors. vs Yadavalli Venkataratnam and Ors and the two decisions of the Allahabad High Court relied upon by the High Court. Counsel pointed out that the Madras High Court in Kodali Bapayya 's case (supra) and the Allahabad High Court in its Full Bench decision in Ganga Ram vs Smt. Phulwati have dealt with the Bombay decision and have expressed their disagreement with the view expressed therein. Section 27 of the deals with the topic 'Meaning of service by post ' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre paying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus arises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, pre paying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without any thing more. Similar presumption is raised under Illustration (f) to section 114 of the Indian Evidence Act whereunder it is stated that the Court 971 may presume that the common course of business has been followed in h a particular case, that is to say, when a letter is sent by post by pre paying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under section 27 of the as well as under section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under section 27 of the as well as under section 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed. with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under section 27 of the and section 114 of the Indian Evidence Act. Turning to the Bombay decision in Vaman Vithal 's case (supra), We would like to point out two aspects that emerge clearly from the very observations which have been strongly relied upon by counsel for the appellant. In the first place, the observations clearly show that the refusal to accept the notice was not satisfactorily proved in the case inasmuch as the postman who took the letter and brought it back had not been examined; consequently the further observations made by the leaned Chief Justice were unnecessary for decision on the point and as such will have to be regarded as obiter. 972 Secondly, while making those observations the learned Chief Justice WAS himself conscious of the fact that there were some authorities of that Court taking the contrary view. Having regard to these aspects it is difficult to hold that the concerned observations lay down the correct legal position in the matter. In any event we approve of the view taken by the Allahabad High Court in its three decisions, namely, Sri Nath 's case, Fanni Lal 's case and Ganga Ram 's case (supra) and would confirm the High Court 's finding on the point in favour of the respondents. Counsel for the appellant then faintly argued that the respondents suit was not maintainable under section 14(1) of the Act inasmuch as no permission of the District Magistrate had been obtained by the respondents before filing the suit as required by section 14 and in this behalf reliance was placed on section 14(a) of the Act which ran thus: "14. Restrictions on eviction. No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds, namely: (a) that the tenant has willfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord. " According to counsel for the appellant the aforesaid provision clearly shows that under the Act two safeguards were available to a tenant (i) eviction could not be had by any landlord except on one or more of the grounds specified in cls. (a) to (f) of section 14 and (ii) no suit for eviction even on those grounds specified in cls. (a) to (f) could be instituted without the permission of the District Magistrate, and admittedly the landlords in the instant case had filed the suit against the appellant without obtaining the permission of the District Magistrate. He, therefore, urged that the Civil Court had no jurisdiction to entertain the suit and the decree was without jurisdiction. It must be observed that no such contention was raised by the appellant in any of the Courts below presumably because the appellant as well as this lawyer knew how an identical provision contain ed in section 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, an allied enactment, had been judicially interpreted by in this Court in Bhagwan Dass vs Paras Nath Section 3 of the U.P. Act 3 of 1947 ran thus: 973 "3. Restrictions on evictions. Subject to any order passed under sub section (3), no suit shall without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds: (a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand. " This Court in Bhagwan Dass case Asupra) has explained at page 305 of the report the legal position arising on a grammatical construction of section 3(1) thus: "Section (3) 1 does not restrict the landlord 's right to evict his tenant on any of the grounds mentioned in cls. (a) to (g) of that sub section. But if he wants to sue his tenant for eviction on any ground other than those mentioned in those clauses then he has to obtain the permission of the District Magistrate whose discretion is subject to any order passed under sub section (3) of section 3 by the Commissioner. These are the only restrictions placed on the power of a landlord to institute a suit for eviction of his tenant. " It would be conducive to judicial discipline to interpret an identical provision contained in section 14(1) of the U.P. Cantonment (Control of Rent & Eviction) Act, 1952 in a similar manner. In other words, under section 14(1) of the concerned Central Act permission of the District Magistrate was required if the landlord sought eviction of his tenant on any ground other than those specified in cls. (a) to (f) and not when it was sought on any of the grounds specified in cls. (a) to (f). (If may be stated that both the enactments have since been repealed). It is, therefore, not possible to accept the contention of the counsel for the appellant that the instant suit filed by the respondents against the appellant could not be entertained by the Civil Court. In the result the appeal fails and is dismissed. However, having regard to all the facts and circumstances of the case there will be no order as to costs and we grant the appellant six months time to vacate. DESAI, J. I have very carefully gone through the judgment prepared by my learned brother Mr. Justice V. D. Tuzapurkar, but I regret my inability to agree with the same. 974 The relevant facts leading to the appeal by special leave have been succinctly set out in the main judgment and therefore, I would straightway proceed to deal with the three important questions raised in this appeal. The first and the principal question which goes to the root of the matter is about the construction of section 20(2) (a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 ( 'Rent Act ' for short). It reads as under: "20. Bar of suit for eviction of tenant except on specified grounds: (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds namely: (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a demand :" There is a proviso to this sub section which is not material for the purpose of this appeal. A brief resume of concurrently found facts which would high light the question of construction would be advantageous. Appellant was inducted as a tenant of the premises by its former owner on a rent of Rs. 250/ per annum in the year 1964, on a request by the then landlord, appellant tenant surrendered a portion of the premises, comprising two rooms, a kitchen, a bathroom and a verandah at the back of the shop, retaining only possession of the shop, consequently reducing the rent by agreement between the parties at the rate of Rs. 100/ per annum. It is thus an agreed and incontrovertible fact that the appellant tenant is a tenant of a shop on an yearly rent of Rs. 100/ , payable at the end of every year. The focus should immediately be turned to the provision of law under which the landlord seeks to evict this tenant. According to respondent landlord she served notice dated November 9, 1966, terminating the tenancy of the appellant as the appellant tenant was a defaulter within the meaning of section 20(2) (a) and, therefore, she all was entitled to a decree for eviction as she has satisfactorily proved all the requirements or ingredients of section 20(2) (a). Accepting the finding of fact that the appellant is a tenant liable to pay rent 975 @ Rs. 100/ per annum, the crux of the matter is whether his case is covered by section 20(2) (a). What does section 20(2) (a) postulate and what are its components which when satisfied, the landlord would be entitled to evict the tenant ? On analysis following ingredients of section 20(2) (a) would emerge each of which will have to be satisfied before the landlord 1 would be eligible to obtain a decree for eviction, viz: (i) Tenant must be a tenant of premises governed by the Rent Act; (ii) That the tenant is in arrears of rent for not less than four months; (iii) That such a tenant has to pay rent in arrears within a period of one month from the date of service upon him of a notice of demand. In this case, the tenant is a tenant of premises governed by tho Rent Act. The crucial question is whether the second ingredient, as extracted above, is satisfied by the landlord. The attention has to be focused on the expression 'in arrears of rent for not less than four months '. What does this expression signify ? As contended on behalf of the respondent that whatever be the default in payment of rent, the notice can be served after the default has continued for a period of four months, and failure to comply with the requisition in the notice would disentitle the tenant to the protection of Rent Act. Alternatively it was contended that the expression in arrears of rent for not less than four months ' on a literal grammatical construction would signify that rent is payable by the month and that the tenant has committed a default in payment of four months ' rent and further failed to comply with the requisition made in the notice within the stipulated period of one month and only then the protective umbrella of the Rent Act would be removed and the tenant would be exposed to a decree for eviction. The two rival constructions raised a question of construction of a sub section in a statute primarily enacted as can be culled out from the long and short title of the Rent Act, being regulation of letting and rent and arbitrary eviction of tenant from the premises to which the rent Act would apply. It is a socially beneficent statute and in construing such statute certain well recognised canons of construction have to be borne in mind. Undoubtedly, the dominant purpose in construing the statute is to ascertain the intention of the legisla 976 ture. This intention, and, therefore, the meaning of the statute, is primarily to be sought ill the words used in the statute itself, which must, if they are plan and unambiguous, be applied as they stand, however strongly it may be suspected that the result does not re present the real intention of legislature (see Inland Revenue Commissioner vs Hinchy). In approaching the matter from this angle, it is a duty of the Court to give fair and full effect to statute which is plain and unambiguous without regard to the particular consequence in a special case. Even while giving liberal construction to socially beneficent legislation, if the language is plain and simple the making of a law being a matter for the legislature and not courts, the Court must adopt the plain grammatical construction (see River Wear Commissioners vs Adamson) The Court must take the law as it is. And, accordingly, it is not entitled to pass judgment on the propriety or wisdom of making a law in the particular form and further the Court is not entitled to adopt the construction of a statute on its view of what Parliament ought to have done. However, when two constructions are possible and legitimate ambiguity arises from the language employed, it is a plain duty of the Court to prefer and adopt that which enlarges the protection of a socially beneficent statute rather than one which restricts it. In Mohd. Shafi vs Additional District & Sessions Judge (VII), Allahabad and Others, this Court while interpreting the explanation (iv) to section 21 of the Rent Act observed that where the language is susceptible of two interpretations, the Court would prefer that which on larges the protection of the tenants rather than one which restricts it. It was further observed that the construction that the Court adopted would be more consistent with the policy and attainment of the legislation which is to protect the possession of the tenant unless the landlord establishes a ground for eviction. Similarly in Gurucharan Singh vs Kamla Singh & Ors. while interpreting the provision of section 6 of the Bihar Land Reforms Act, 1950, this Court observed that the Court was called upon to interpret a land reforms law are not just an ordinary state and, therefore, the socioeconomic thrust of the law in these areas should not be retarded by judicial construction but filliped by the legal process without parting from the object of the Act. It must also be emphasised that where two constructions are possible, the one that must be preferred is one which would accord with reason and justice (see H. H. Maharaja 977 dhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors. vs Union of India & Another. Bearing in mind this interpretative approach let us hark back to the expression used in s.20(2)(a) and ascertain whether the exception is susceptible of one construction only or more than one construction and whether there is ambiguity and if so, in which direction the interpretative jurisprudence must move. The expression "the tenant is in arrears of rent for not less than four months" may suggest that the tenant is in arrears of rent for one or any number of months and that the arrears have fallen due four months back meaning thereby that within four months there was no attempt on the part of the tenant to pay up the arrears and cure the default. This construction would imply that if the tenant is in arrears of rent for one month only, an action under the relevant clause can be commenced against him if this infault has continued for a period of four months even if the tenant has paid rent for subsequent months and on the expiry of the period of four months from the date on which the rent had become due and payable for one month a notice of demand can be served and on the failure of the tenant to comply with the requisition made in the notice he would be liable to be evicted. In other words, a period of four months must elapse between the date of default and the service of notice irrespective of the fact whether the default is in payment of one month 's rent or more than one month 's rent. In this constriction it is implicit that failure to pay rent for four different months is not a sine qua non for commencing action under section 20(2) (a). What is of the essence of matter is that a period of four months must elapse between the date of default complained of and service of notice under section 20(2) (a). It was said that the legislature has given locus poenitentiae to the tenant to repair the default within the period of four months. This approach overlooks the obvious that before action can be commenced under section 20(2) (a) a notice has to be served and tenant is given locus poenitentiae to repair the default within one month. It appears that by section 43 of the Rent Act the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 ( 'Repealed Act ' for short) was repealed. Section 3 of the Repealed Act enumerated grounds on which a tenant could be evicted. Sub clause (a) of section 3 provided that the landlord would be entitled to eviction of a tenant if the tenant was 'in arrears of rent for more than three months ' and had failed to pay the same to the landlord within one month of the service upon him of the notice of demand. The language employed in the repealed provision led 978 the Court to hold that whatever be the default in payment of rent, a period of three months should have expired from the date of default whereafter alone the landlord would be entitled to serve a notice as provided in the relevant sub clause. It was so held by the Allahabad High Court in Ram Saran Das vs L. Bir Sain, but this decision was overruled in Jitendra Prasad vs Mathur Prasad. In order to avoid ally such controversy, in the Repealing statute the expression 'arrears of rent for more than three months ' has been substituted by the expression 'arrears of rent for not less than four months '. This is contemporaneous legislative exposition which clearly brings out the legislative intention that the landlord would be entitled to evict the tenant if the rent is in arrears for not legs than four months. Therefore, it would clearly imply that before the landlord can commence action under sub clause (a), the tenant must have committed default in payment of rent for a period of four months. Therefore, the first suggested construction is not borne out by the language employed in the section. The question still remains: what does the expression 'in arrears of rent for not less than four months ' signify ? It is implicit in the expression that the rent must be payable by month. Irrespective of the fact whether the tenancy is a yearly tenancy or a monthly tenancy, it is implicit in sub clause (a) that either by the contract of lease or by oral agreement or by long usage the tenant is liable to pay rent at the end of every month. In other words, the unit for computation of rent is one month, that is, rent becomes due and payable every month. It is only such a tenant who may fall in arrears for a period of four months. Every month the tenant would be liable to pay the rent in the absence of a contract to the contrary. Thus the rent becomes due and payable at the end of every month. As soon as the month is over the rent becomes due and payable and failure on the part of the tenant to pay the same would dub him as a tenant in arrear of rent for one month. If this process goes on meaning thereby that a period of four months having expired and for each of the four months the rent when It became due and payable was not paid, then alone the tenant could be said to be a tenant in arrears of rent for not less than four months. Two definite ingredients emerge from the expression 'the tenant is in arrears of rent for not less than four months ' (i) that the rent is payable by month; and (ii) the tenant has committed default in payment of rent for four different months and that this default subsists and continues on the date when the landlord invokes the 979 provision of clause (a) and proceeds to serve a notice of demand. Again, if within a period of one month from the date of receipt of the notice the tenant pays up the arrears of rent he does not lose the protection of the Rent Act. The legislature clearly intended to cover those cases of default in payment of rent under clause (a) where the contract of lease provided for payment of rent every month meaning thereby that the unit for liability to pay rent is one month and secondly the tenant has committed default on four different occasions of four different months or four different units agreed upon for payment of rent and that they differ the facility to pay the same has accrued. As stated earlier this is implied in the expression 'the tenant is, in arrears of rent for not less than four months. In this connection one can profitably refer to section 12(3) (a) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, which reads as under: "Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, it such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the (2) (Court shall pass a decree) for eviction in any such suit for recovery of possession. " The expression used there is that the rent is payable by month and the tenant is in arrears for a period of six months. In the Rent Act under discussion, a conjoint expression is used that a tenant is in arrears of rent for a period of not less than four months. It only means that where the rent is payable by month and the tenant is in arrears of rent for not less than four months, and that is the clearest intention discernible from the language used in the relevant clause. It was, however, contended that this construction would give an undeserved advantage to the defaulting tenant where the rent is not payable by month. The contention is that a landlord who had agreed to accept rent on an yearly basis would be at the mercy of the tenant because even if the default is contumacious the landlord would not be entitled to evict the tenant and that such could not be the intention of the legislature. It was, therefore, said that the expression 'the tenant is in arrears of rent for not less than four 980 months ' is also susceptible of the meaning that where the rent is payable by year and after the year is over and the rent has become due and payable if the tenant has not paid the rent for four months his case would be covered by clause (a). If a tenant is under a contract with the landlord to pay rent at the end of a specific year agreed to between the parties, could he be said to be a tenant arrears for not less than four months even if he has defaulted in payment of rent at the end of one year l How can a tenant who is to pay rent on the expiry of a specified year be in arrears of rent for not less than four months ? And if that construction is adopted, a tenant who has committed default in payment of rent for one month and the default has continued without repair for a period of Four months even though he has paid rent for subsequent months he would be liable to be evicted, a construction which ought to be rejected on legislative exposition by change in expression adopted in the repealed Act and substituted in the present Act discussed herein above. If that construction is rejected it would be difficult to accept the construction that even of the rent is payable by year once the year is over and a period of four months has elapsed he could be said to be a tenant in arrears of rent for not less than four months. The language does not admit of this construction. Therefore, where the rent is payable by the year clause (a) is not attracted. Now the wild apprehension expressed on behalf of the landlord that such a construction would give an unfair advantage to a tenant who is liable to pay yearly rent need not detain us because the wisdom of enacting a law in a certain manner is for the legislature to decide and not for the court to impose. It may be that the legislature would have intended that such landlords who relied on the income from rent month after month must have a sanction which can be applied if the tenant commits default in payment of rent of four different months but a landlord who apparently does not depend upon the rental income by agreeing to accept yearly rent need not have that sanction and it would be still open to such a landlord to file a suit merely for recovery of rent and not for eviction. Such a thing is not unknown to law because in permanent tenancy and in tenancies of long duration the landlords can only sue for rent and not for eviction on the tenant committing default in payment of rent. Therefore, on examining both the rival constructions one which extends the protection deserves to be accepted in view of the fact that the legislature never intended to provide a ground for eviction for failure to pay rent in case of leases where yearly rent was reserved. Rent Act was enacted to fetter the right of re entry of landlord and this construction accords with the avowed object of the Rent Act. 981 In the instant case the parties are ad idem that the rent is payable by year at the rate of Rs. 100/ per annum. In such a case it could not be said that this tenant was in arrears of rent for not less than four months. His case would not be covered by section 20(2) (a) of the Rent Act and, therefore, the landlord would not be entitled to a decree for eviction on this ground and that was the sole ground on which eviction has been ordered. The second contention is that the High Court was in error in interfering with the concurrent finding of facts while hearing second appeal in February, 1979 and that too without framing the point of law which arose in the appeal. The disputed finding of fact is about the service of notice. If a landlord seeks eviction on the ground of tenant 's default in payment of rent under section 20(2) (a) it is obligatory upon him to serve a notice of demand of the rent in arrears On the tenant and can only seek eviction if the tenant fails to comply with the requisition made in the notice. The appellant tenant in terms contended that no notice was served upon him. On the assertion of the respondent landlord that notice dated November 9, 1966, was served upon the appellant tenant on November 10, 1966, but he refused to accept the same and the refutation thereof by the tenant that no notice was offered to him by the postman nor was any notice refused by him, a triable issue arose between the parties. The learned trial judge framed Issue No. 7 on the question of service of notice. He recorded a finding that the appellant tenant was not served a notice of demand and of ejectment and answered the issue in favour of the appellant tenant. On appeal by the respondent landlord the appellate court framed point No. 2 on the question of service of notice and answered it by observing that the defendant tenant refused to accept the registered notice but no knowledge can be attributed to him of the contents of the registered envelope and, therefore, the tenant could not be said to be guilty of wilful default on the expiry of one month after the service of notice. He accordingly confirmed the finding of the trial court that the plaintiff landlord is not liable to a decree of eviction on the ground mentioned in section 20(2)(a). The landlord approached the High Court in second appeal. When this appeal was heard, section 100 of the Civil Procedure Code after its amendment of 1976 was in force. It restricted the jurisdiction of the High Court to entertain a second appeal only if the High Court was satisfied that the case involved a substantial question of law. Sub section 4 cast a duty on the court to formulate such a substantial question of law and the appeal has to be heard on the question so formulated. It would also be open to the respondent 982 at the hearing of the appeal to contend that the case does not involve such a question. Even prior to the amendment of Section 100, the High Court ordinarily did not interfere with the concurrent findings of fact. This position has been repeatedly asserted and one need not go in search of precedent to support the proposition. However one can profitably refer to R. Ramachandran Ayyar vs Ramalingam Chettiar. After examining the earlier decisions and the decision of the Privy Council in Mst. Durga Chaudhrain vs Jawahar Choudhary Gajendragadkar J. speaking for this Court in terms spelt out the jurisdiction of the High Court in second appeal as under: "But the High Court cannot interfere with the conclusions of fact recorded by lower appellate Court however erroneous the same conclusions may appear to be to the High Court, because, as the Privy Council observed, how ever gross or in excusable the error may seem to be, there is no jurisdiction under section 100 to correct that error". This view was re affirmed in Goppulal vs Dwarkadhishji wherein after reproducing the concurrent finding of fact this Court observed that this concurrent finding of fact was binding on the High Court in second appeal and the High Court was in error in holding that there was one integrated tenancy of six shops. In the facts of this case, there was a concurrent finding that the statutory notice as required by section 20(2) (a) was not served upon the tenant and, therefore, the High Court was in error in interfering with this finding of fact. However, it is not necessary to base the judgment on this conclusion because it was rightly said on behalf of the respondent that whether the notice was offered to the petitioner tenant and he refused to accept the same the finding is not concurrent because the appellate court has held that the notice was offered but the tenant refused to accept the same and, therefore, on the refusal to accept the notice there was no concurrent finding. This contention is legitimate because the appellate court held that notice as required by law was not served because even if the tenant refused to accept the notice the knowledge of the contents of the registered envelope not opened by him cannot be imputed to him, and, therefore, there was no service of notice as required by section 20(2) (a). The first appellate court was of the view that in the absence of knowledge of the demand of rent in arrears as alleged in the notice the tenant cannot be said 983 to be guilty of wilful default so as to be denied the protection of the Rent Act. This accordingly takes me to the third contention in this appeal. The third contention is that even if this Court agrees with the High Court in holding that the notice in question was tendered by the postman to the appellant tenant and he refused to accept the same n: and, therefore, this refusal amounts to service within the meaning of section 20(2)(a), yet as the knowledge of the contents of the notice would reflect on subsequent conduct as wilful or contumacious, it is not sufficient that a notice is served or tendered and refused but it must further be shown that in the event of refusal the tenant did it with the knowledge of the contents of the registered envelope and his subsequent conduct is motivated. The question then is; What would be the effect of a notice sent by registered post and refused by a tenant on the question of his knowledge about the contents of the notice and his failure to act? Would it tantamount to an intentional conduct evidencing wilful default on his part? This aspect cannot be merely examined in the background of some precedents or general observations. One has to examine this aspect in the background of Indian conditions or in the words of Krishna Iyer, J., 'the legal literacy in rural areas and the third world jurisprudence. ' Before we blindly adhere to law bodily imported from western countries we must not be oblivious to the fact that the statutes operating in the western countries are meant for a society if not 100 per cent. , 99 per cent. literate. We must consciously bear in mind that our society especially in the semi urban and rural areas is entirely different and wholly uncomparable to the western society. A literate mind will react to a problem presented to him in a manner other than an illiterate mind because illiteracy breeds fear and fear oriented action cannot be rationally examined on the touchstone of legal presumptions. To articulate the point as it arises in this case, let one put his feet in the shoes of a rural illiterate person to whom a registered envelope by a postman is presented. Does it require too much of imagination to conclude that he will be gripped with fear and he may react in a manner which will be his undoing? He would believe that by refusing to accept the registered envelope he would put off the evil rather than accept the same and approach a person who can advise him and meet the situation. Can this action of fear gripped mind inflict upon the person an injury flowing from the assumption that he not only refused the registered envelope with the conscious knowledge of the fact that it contained a notice by a lawyer on behalf of his landlord and that it accused him of wilful 984 default in payment of rent and that if he would act rationally he would repair the default by tendering the rent within the period of one month granted by the statute? If he is deemed to have acted consciously is it conceivable that he would invite injury by sheer refusal to accept the registered envelope rather than know the con tents or make them knowable to him and meet the charge of wilful default. As was said, again by Krishna Iyer, J., which bears quotation: "The Indian Courts interpret laws the Anglo Indian way, the rules of the game having been so inherited. The basic principles of jurisprudence are borrowed from the sophisticated British system, with the result that there is an exotic touch about the adjectival law, the argumentative method and the adversary system, not to speak of the Evidence Act with all its technicalities". Lord Devlin recently said: "If our business methods were as antiquated as our legal methods, we would be a bankrupt country. There is need for a comprehensive enquiry into the rules of our procedure backed by a determination to adopt it to fit the functions of the welfare State". This is much more apposite in the conditions of our society and this was noticed by Beaumost, C. J. way back in fourth decade of this century in Waman Vithal Kulkarni & Others. vs Khanderao Ram Rao Sholapurkar. An exactly identical question arose before the Division Bench of the Bombay High Court. The facts found were that the registered letter containing the notice was sent to defendants 4 & 5 duly addressed and service was alleged to have been refused. The contention was two fold that the refusal was not proved but alternatively it was contended that even if it was proved, the addressee could not be imputed with the knowledge of the contents of the registered envelope. The pertinent observation is as under: "In the case of defendants 4 and 5 a registered letter containing the notice was sent to them duly addressed, and service is alleged to have been refused. In fact the refusal was not proved, as the postman who took the letter and brought it back was not called. But in any case, even if the refusal had been proved, I should not be prepared to hold 985 that a registered letter tendered to the addressee and refused and brought back unopened, was well served. There are, I know, some authorities in this Court to the contrary, but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, it the agent for service states that in fact the notice was not served, although the reason may have been that the addressee declined to accept it. One cannot assume that because an addressee declines to accept a particular sealed envelope he has guessed correctly as to its contents. Many people in this country make a practice of always refusing to accept registered letters, a practice based, I presume, on their experience that such documents usually contain something unpleasant. To that, it is clear that this notice was not served on three of the defendants". Learned counsel for the respondent tried to distinguish this decision by observing that the court did hold that the refusal was not proved, therefore, the rest of the observation was obiter. It is not far a moment suggested that the decision of the Division Bench of the Bombay High Court is binding on this Court but the reasoning which appealed to the Division Bench in 1935 is all the more apposite at present. The Division Bench noticed that in the society from which the defendants came, there was a feeling that such registered letters usually contained something unpleasant. Is there anything to suggest that this feeling is today displaced or destroyed? The Division Bench further noticed that many people in India make a practice of always refusing to accept registered letters and the practice according to the Division Bench was based on their experience that such documents usually contained something unpleasant. The reaction is to put off the evil by not accepting the envelope. Could such ignorant illiterate persons be subjected to a legal inference that the refusal was conscious knowing the contents of the document contained in the registered envelope? To answer it in the affirmative is to wholly ignore the Indian society. And this concept that the registered envelope properly addressed and returned with an endorsement of refusal must permit a rebuttable presumption that the addressee refused it with the knowledge of the contents is wholly borrowed from the western jurisprudence. I believe it is time that we ignore the illusion and return to reality. Reference was also made to Appabhai Motibhai vs Laxmichand Zaverchand & Co., but that case does not touch the point. In Mahboob Bi vs Alvala 986 Lachmiah, an almost identical question figured before the Andhra Pradesh High Court. In that case the Rent Controller issued a notice in respect of the proceedings initiated before him by the landlord for the eviction of the tenant, to the tenant by registered post and the envelope was returned with the endorsement of refusal and the Rent Controller set down the proceedings for ex parte hearing and passed a decree for eviction. The tenant under the decree of eviction preferred an appeal in the City Small Causes Court. A preliminary objection was raised by the respondent landlord that the appeal was barred by limitation as it was filed six days after the time allowed for filing the appeal. The appellant tenant countered this by saying that he had no knowledge of the proceedings before the Rent Controller and that he was never served with the notice of proceedings before the Rent Controller. The relevant rule permitted service of notice by registered post. After examining the relevant rule the Court accepted the contention of the tenant observing as under: "Moreover nothing has been placed before me to show that there is any duty cast upon any person to receive every letter or notice sent by registered post, nor does the refusal to receive has been made the subject matter of any presumption which may arise under sec. 114 of the Evidence Act. Then again, there is the practical difficulty of having to import the knowledge of the date of hearing or the precise proceedings with which the registered notice is concerned in the case of a mere refusal to receive a registered notice". The Court thus was of the view that even if refusal amounted to service, yet it is not service as required by law to fasten a liability on the tenant because no presumption can be raised that the refusal war, with the conscious knowledge of the contents of the registered envelope. Undoubtedly, our attention was also drawn to a contrary view taken by a Division Bench of the Allahabad High Court in Fannilal vs Smt. Chironja. It was contended that even if the registered letter was refused no presumption of knowledge of the contents of the letter could in law the raised against the tenant. In support of the submission reliance was placed on Amarjit Singh Bedi vs Lachchman Das, an unreported decision of a single judge of the Allahabad High Court and the decision of Beaumont, C.J. in Waman Vithal Kulkarni 's case. The Division Bench of the Allahabad High Court did not accept the view of Beaumont, C.J. The Court was of the opinion that a presumption of fact would arise under 987 section 114 of the Evidence Act that the refusal was with the knowledge of the contents of the registered envelope. The Court has not considered the specific Indian conditions, the approach of rural Indians to registered letters and has merely gone by the technical rules of Evidence Act, which, as experience would show, could sometimes cause more harm and lead to injustice through law. The contrary Allahabad decision does not commend to me. On the contrary, the Bombay view is in accord with the conditions of society in rural India and I do not propose to make any distinction even with regard to urban areas where also there are a large number of illiterates Even in the case of a semi literate person who is in a position to read and write he could not be accused of legal literacy. Therefore, it is not possible to accept the submission that mere refusal would permit a presumption to be raised that not only the service was legal but the refusal was the conscious act flowing from the knowledge of the contents of the letter. How dangerous this presumption is can be easily demonstrated, and how it would lead to miscarriage of justice can be manifestly established. Once knowledge of the contents of the registered envelope is attributed to a person to whom a registered envelope is sent and who has refused to accept the same, that this was an act accompanied by the conscious knowledge of the contents of the letter he who may be an innocent defaulter or presumably no defaulter at all, would be charged with a contumacious conduct of being a wilful defaulter. The Rent Act does not seek to evict a mere defaulter That is why a provision for notice has been made. If even after notice the default continues, the tenant can be condemned as wilful defaulter. Could he be dubbed guilty of conscious, wilful, contumacious, intentional conduct even when he did not know what was in the registered envelope? In my opinion, it would be atrocious to impute any such knowledge to a person who has merely been guilty of refusing to accept the registered notice. Where service of notice is a condition precedent, a dubious service held established by examining the postman who must be delivering hundreds of postal envelopes and who is ready to go to the witness box after a long interval to say that the offered the envelope to the addressee and he refused to accept the same, would be travesty of justice. And if this condition precedent is not fully satisfied, the consequent conduct cannot be said to be wilful. In a slightly different context in Commissioner of Income tax, Kerala vs Thayaballi Mulla Jeevaji Rapasi (decd.), this Court held that service of the notice under 988 section 34(1)(a) of the Income tax Act, 1922, within the period of limitation being a condition precedent, to the exercise of jurisdiction, if no notice is issued or if the notice issued is shown to be invalid, then the proceedings taken by the Income tax Officer without a notice or in pursuance of an invalid notice would be illegal and void. It was, however, contended that if the Court accepts the legal contention as canvassed on behalf of the appellant it would be impossible tc serve the notice as statutorily prescribed. This wild apprehension is wholly unfounded. The notice is required to be served in the manner prescribed by section 106 of Transfer of Property Act which, inter alia, provides for affixing a copy of the notice on the premises in possession of tenant. Therefore, it cannot be said that the approach of the Court would render it impossible for the landlord to meet with the statutory requirement of service of notice before Commencing the action for eviction. Having, therefore, examined the three vital contentions, in my opinion the suit of the landlord must fail on the ground that the rent was not payable by month and, therefore, section 20(2) (a) is not attracted. And further, even if it is attracted, as the statutory notice as required by section 20(2) (a) was not served, a decree for eviction cannot be passed on the only ground of default in payment of rent. I would accordingly allow this appeal and dismiss the suit of the respondent for eviction but with no order as to costs in the circumstances of the case. S.R. Appeal dismissed.

The appellant was inducted in the year 1964 as a tenant of the suit premises on an yearly rental payable by December 31, every year. Since the appellant did not pay the rent for the years 1965, 1966 a combined notice dated November 9, 1966 demanding payment of arrears and seeking ejectment on termination of tenancy, was sent by registered post by the respondents. The appellant refused to receive the notice on November 10, 1966. On his failure to comply with the requisitions contained in the notice, the respondents filed a suit against the appellant seeking eviction as well as recovery of rents and mensne profits. Having lost before the trial court and the first appellate court, the respondents came up before the High Court in second appeal. The High Court accepted the finding of fact recorded by the first appellate court that there was service of the notice on the appellant by refusal and held that when notice was tendered to the tenant and when the latter refused to accept the same know ledge of the contents of the notice must be imputed to him. The High Court allowed the landlords ' appeal and granted three months time to the appellant to vacate the shop. Hence, the tenant 's appeal after obtaining special leave from this Court. Dismissing the appeal, the Court ^ HELD: (By majority) Per Tulzapurkar, J. (On behalf of A. P. Sen, J. and himself). The presumptions that are raised under section 27 of the and section 114 of the Indian Evidence Act, make it clear that, when service is effected by refusal of a postal communication, the addressee must be imputed with the knowledge of the contents thereof. [971 E F] 1:2. Before the knowledge of the contents of the notice could be imputed, it is not necessary that the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contend should be read over to him by the post man or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. [971 D E] 963 Vaman Vithal Kulkarni and Ors. vs Khanderao Ram Rao Sholapurkar, , explained and dissented from. Mahboob Bi vs Alvala Lachmiah, A.I.R. 1964 A.P. 324, held inapplicable. Shri Nath and another vs Smt. Saraswati Devi Jaiswal, A.I.R. 1964 All. 52; Fanni Lal vs Smt. Chironja, ; Ganga Ram vs Smt. Phulwati, ; Kodali Bapayya and Ors. vs Yadavalli Venkataratnam and Ors., A.I.R. 1953 Mad. 884, approved. Harihar Banerji and Ors. vs Ramshashi Roy and Ors., A.I.R. 1918 P.C. 102, referred to. The suit under section 14(1) of the U.P. Cantonment (Control of Rent & Eviction) Act (Central Act X of 1952), in the instant case was maintainable. Under section 14(1) of the Central Act, which in pari materia with section 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, permission of the District Magistrate was required if the landlord sought eviction of the tenant on any ground other than those specified in clauses (a) to (f) and not when it was sought on any of the grounds specified in clauses (a) to (f). [973 E P] Bhagwan Dass vs Paras Nath, ; , followed. All the courts rightly dealt with the matter as being governed by the U.P. Cantonments (Control of Rent & Eviction) Act, X of 1952 a Central Act and not by U.P. (Temporary) Control of Rent and Eviction Act, 1947 much less by the later U.P. (Rent & Eviction) Act, 1972. [966 E F] Per Desai. J. Contra. Uttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 is a socially beneficient statute and should be construed according to well recognised canons of construction. The words used in the statute, if they are plain and unambiguous must be applied as they stand, however, strongly it may be suspected that the result does not represent the real intention of the legislature. However, if two constructions are possible and legitimate ambiguity arises from the language employed that which enlarges the protection of a socially beneficient statute rather than one which restricts it should be preferred and adopted. In other words the construction which would be more consistent with the policy and attainment of the legislation which is to protect the possession of the tenant unless the landlord establishes a ground for eviction should be preferred. Further where two constructions are possible the one which would accord with reason and justice must be preferred. [975 G H, 976 A, D, G] Inland Revenue Commissioners vs Hinchy, , H. L. at 767= (1960) 1 All India Reports 505 at 512; River Wear Commissioners vs Adamson, & 765, quoted with approval. Mohd. Shafi vs Additional District & Sessions Judge (VII), Allahabad and Others, ; Gurucharan Singh vs Kamla Singh & Ors. ; ; H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors. vs Union of India & Another, [1971] 1 S.C.C. 85, reiterated. 964 2:1. The substitution of the expression, "arrears of rent for not less than four months" in sub clause (a) of sub section (2) of section 20 of the Uttar Pradesh Urban Buildings (Regulation of Letting Rent & Eviction) Act, 1972 is a contemporaneous legislative exposition bringing out clearly the legislative intention that the landlord would be entitled to evict the tenant if the rent is in arrears for not less than four months. Before the landlord can commence action under sub clause (a): (i) the tenant must have committed default in Payment of rent for a period of four months, and (ii) a notice has to be served, giving the tenant locus poeniteniae to repair the default within month. [978 B C] 2:2. Two ingredients emerge from the expression "the tenant is in arrears of rent for not less than four months": (i) that the rent is payable by month and (ii) the tenant has committed default in payment of rent for four different months and that this default subsists and continues on the date when the land lord invokes the provision of clause (a) and proceeds to serve a notice of demand. Again, if within a period of one month from the date of receipt of notice, the tenant pays up the arrears of rent he does not lose the protection of the Rent Act. [978 G H 979] 2:3. It is implicit in the expression "the tenant is in arrears of rent for not less than four months" that the legislature clearly intended to cover those cases Of default in payment of rent under clause (a) where the contract of lease provided for payment of rent every month meaning thereby that the unit for liability to pay rent is one month and secondly the tenant has committed default on four different occasions of four different months or four different units agreed upon for payment of rent and that too after the liability to pay the same has accepted. [979 A C] 2:4. Section 20(2)(a) of the Rent Act, 1972 does not attract cases where the landlords accept rent on an yearly basis. The language of the section does not admit of a construction, namely, that even if the rent is payable by year, once the year is over and a period of four months has elapsed he could be said to be "a tenant in arrears, of rent for not less than four months". In the instant case, the parties are ad idem that the rent is payable by year at the rate of Rs. 100/ per annum. In such a case it could not be said that this tenant was in arrears of rent for not less than four months. His case would not be covered by section 20(2) of the Rent Act and, therefore, the landlord would not be entitled to a decree for eviction on this ground and that was the sole ground on which eviction has been ordered. [980 C D, 981 A B] 3. The amended section 100 of the Civil Procedure Code restricted the jurisdiction of the High Court to entertain a second appeal only if the High Court was satisfied that the case involved a substantial question of law. Sub section G(4) cast a duty on the court to formulate such substantial question of law and the appeal has to be heard on the question so formulated. It would also be open to the respondent at the hearing of he appeal to contend that the case does not involve such a question. Thus, the High Court ordinarily cannot and did not interfere with the concurrent findings of fact arrived at by the courts below. [981 G H, 982 A] In the facts of this case, there was a concurrent finding that the statutory notice as required by section 20(2)(a) was not served upon the tenant and, therefore, the High Court was in error in interfering with this finding of fact. [982 B C] 965 R. Ramachandran Ayyar vs Ramalingam Chettiar, ; Mst. Durga Chaudhrain vs Jawahar Choudhary, 1890 LR 17 IA, 122; Goppulal vs Dwarkadhishji, [1969] 3 S.C.R. 989, reiterated. Mere refusal of a registered letter would not permit a presumption to be raised that not only the service was legal, but the refusal was the conscious act flowing from the knowledge of the contents of the letter. [987 C] 4:2. This concept that the registered envelope properly addressed and returned with an endorsement of refusal must permit a rebuttable presumption that the addressee refused it with the knowledge of the contents is wholly borrowed from the western jurisprudence. Not considering the specific Indian conditions and the approach of rural Indian to registered letters, but merely going in with the technical rules of Evidence Act would cause more harm and lead to injustice through law. [985 G H, 986 A] 4:3. The Rent Act does not seek to evict a mere defaulter. That is why a provision for notice has been made. If even after notice the default continues, the tenant can be condemned as willful defaulter. He could not be dubbed guilty of conscious, willful, contumacious, intentional conduct even when he did not know what was in the registered env`elope. It would be atrocious to impute any such knowledge to a person who has merely been guilty of refusing to accept the registered notice. Where service of notice is a condition precedent, a dubious service held established by examining the postman who must be delivering hundreds of postal envelopes and who is ready to go to the witness box after a long interval to say that he offered the envelope to the addressee and he refused to accept the same, would be travesty of justice. And if this condition precedent is not fully satisfied, the subsequent conduct cannot be said to be willful. [987 E G] Fannilal vs Smt. Chironja, (1972) All. Law J. 499 (D.B.) dissented to. Appabhai Motibhai vs Laxmichand Zaverchand & Co., A.I.R. 1954 Bom. 159, held inapplicable. Mahboob Bi vs Alvala Lachmiah, A.I.R. 1964 A.P. 314; Amarjit Singh Bedi vs Lachman Das; Waman Vithal Kulkarni & Others vs Khandera Ram Rao Sholapurkar, A.I.R. 1935 Bom. 247, quoted with approval. The argument that it would be impossible to serve the notice as statutorily prescribed, once it is held that no knowledge of the contents of the refused letter could be imputed to the tenant, is incorrect. The notice is required to be served in the manner prescribed by section 106 of Transfer of Property Act which, inter alia, provides for affixing a copy of the notice on the premises in possession of the tenant. Therefore, it cannot be said that the approach of the Court would render it impossible for the landlord to meet with the statutory requirement of service of notice before commencing the action for eviction [1988 C] 966

ivil Appeal No. 5483 of 1983. From the Judgment and Order dated 7.10. 1982 of the Madhya Pradesh High Court in M.P. No. 169 of 1982. R.F. Nariman and P.H. Parekh for the Appellants. V.N. Ganpule, V.M. Tarkunde, S.K. Agnihotri, S.K. Sinha, Rajinder Narain, R.S. Singh, and Rameshwar Nath for the Respondents. The appellant, a partnership firm filed the writ petition seeking writ of mandamus and other direction to remove Rajdhani Distilleries Corporation, the 7th respondent in the writ petition in the High Court and 6th respondent in this appeal for short 'respondent ' or his 'servants ' or 'agents ' and to deliver vacant and peace ful possession of U j jain Distillery and warehouses at tached to it and the plant and machinery mentioned in the schedule Annexure P 3 to the writ petition. It also sought for mandamus or other order to have the valuation of the plant and machinery in Annexure P 3 assessed or direction to return the goods or things described in Annexure P 7 or on its failure to pay a sum of Rs.8,48,179.28 and a mandamus directing the State Govt. to terminate the licence granted on August 25, 1981 to the respondent and to issue licence to the appellant under section 13 of the M.P. Excise Act, 19 15, for short 'the Act ', etc. Thus this appeal. The material facts, to dispose of the point arose in this appeal, lie 482 in a short compass as stated hereunder: In the State of Madhya Pradesh nine distilleries for the manufacture of spirit were established and one of which was situated at Ujjain. The appellant and its predecessors continuously had licence under sections 13 and 14 of the Act in form D 2 to distil rectified spirit or denatured spirit or liquor and D I licence for wholesale supply of country made liquor in the distillery to retail vendors in the area attached to the distillery. The licence was for a period of 5 years. The last licence of which was for the period from April 1, 1977 to March 31. The normal procedure in vogue was to call for tenders and the lowest was being accepted, though sometimes highest was also preferred. Next licensing period commenced from April 1, 198 1 to March 31, 1986 and the respondent became the successful tenderer which the appellant impugned in Misc. Petition No. 701/81 and obtained stay of dispossession from the distillery and the attached warehouses, The interim stay was later vacated and the petition was dismissed on August 20, 198 1. We may also mention here that the writ petition was also dismissed and the special leave petition was dismissed by this court. Thus grant of licence to the respondent under D 1 and D 2 li cences became final. On August 21, 1981 the Officer in Charge of the distillery wrote a letter to the appellant calling upon them to be present on August 22, 1981 to deliv er the distillery, plant, machinery, etc. to the respondent. The appellant neither received it nor cooperated to deliver possession of the distillery, etc. to the respondent. In stead it locked the distillery and went away. In the mean while the Excise Department also put their locks on the distillery etc. On August 27. 1981 the District Excise Officer again called upon the appellant to be present on August 28, 1981 to deliver possession of the distillery, etc. to the respondent. But the appellant remained absent. Consequently possession was taken of the distillery and warehouses, after taking inventory of stock in hand in the presence of the witnesses and the same were handed over to the respondent on August 28, 1981. The appellant sent a letter on February 23, 1982 valuing the goods taken posses sion of at Rs.8,36,988.61. On August 8, 1982 the appellant demanded redelivery of the distillery, plant and machinery and warehouses and the value of the stock in trade or pay the amount. On March 16, 1982 the appellant filed the writ petition in the High Court but was dismissed. The appellant contended in the High Court that it had been in exclusive possession of the distillery, plant and machinery at Ujjain and the attached warehouses and dispossession was unlawful and that, 483 therefore, the appellant was entitled to restitution of the plant and machinery and also to the grant of licence after cancellation of the licence granted to the respondent. The High Court found that the appellant had no exclusive posses sion which always remained with the Excise Department. The appellant worked out the contract of manufacturing rectified spirit or spirit (country made liquor) in the distillery and wholesale supply to the retail vendors within the area attached to the distillery. Due to non cooperation of the appellant possession was taken and delivered to the incoming licensee, the respondent, as per rules and the appellant was not entitled to restitution. The other findings are not necessary as they are not pressed before this court. The appellant had given up the reliefs of valuation of the plant and machinery and stock in trade. During the pendency of the appeal on an application made by the appellant this court directed the state to make over payment of a sum of Rs. 10 lacs deposited by the respondent with the State Govt. and also further directed the respondent to deposited sum of Rs.5 lacs in the Registry of this court and directed the Registry to keep that amount in fixed deposit to earn inter est thereon subject to adjustment at the final hearing. Despite issuance of several notices by the department, the appellant did not cooperate in the estimate of the value of the plant and machinery of the distillery and warehouses. the Committee appointed in terms of the conditions of the licence, fixed a sum of Rs. 10,53,016.45 as total value payable to the appellant. Since a sum of Rs. 10 lacs had already been paid, the appellant is still entitled to the balance amount of Rs.53,016.45. R.F. Nariman, learned counsel for the appellant, in his thorough and analytical arguments based on record made a shift in the stand and now contended that on a read ing of several clauses in the licence exhibit P 2, in particu lar, clause 50 enjoins the state to fix the valuation of all materials like buildings, still, machinery, etc. belonging to the appellant as an outgoing licensee; should be pur chased by the respondent before the expiry of the contract and commencement of the succeeding contract of the respond ent; the Committee appointed by the Excise Department in this behalf should estimate fair valuation and payment thereto be made to the appellant before taking over posses sion and handing over the plant and machinery of the dis tillery and the attached warehouses to the respondents as a condition precedent to dispossess the appellant and start the operation of the contract by the respondent which admit tedly were not done. This is in contravention of the manda tory conditions of the licence and the rules. The 484 appellant, therefore, is entitled to restitution of the plant and machinery of the distillery and the attached warehouses illegally taken possession of by the respondent and the state. In support thereof he placed strong reliance in Godhra Electricity Co. Ltd. & Anr. vs State of Gujarat & Ors. , ; He also referred to us in support of his contention various documents. In our view it is not necessary to dwelve deep into them. Sri Ganpule and Sri Tarkunde, the learned senior counsel for the State and the respondent. contended that the appellant was requested twice to be present for delivery of the plant and machinery in the distillery and warehouses to the respondent and due to its non cooperation possession was taken. Even for the assess ment of the valuation, before the expiry of the contract. the appellant was given several notices requesting it to furnish the evidence of the value of the plant and machinery stock in trade, etc., and due to its non cooperation. the valuation could not be made. Prior valuation and payment are not condition precedent to work out the licence. The appel lant has no right to the restitution after the expiry of the licence. Sri Tarkunde, in particular, emphasised that the restitution prayed for became infructuous on account of the subsequent events, namely, pursuant to December 1984 Govt. policy the respondents established their distillery at U j jain at their own expenses. The second period of licence also expired in 1991. There was further change in the policy of the Govt. , namely each District was made a supply area under a separate licence for two years. Under these circumstances the appellant is not entitled to any reliefs. It is also further contended that the conditions in the licence in exhibit P 2 marked in the High Court should be read harmoniously. It is clear that prior fixation of the valuation and the payment of the price is not a condition precedent. The ratio in Godhra Electricity Co. Ltd. case is inapplicable to the facts of this case. The sole question is whether fixation of the price of the plants and machinery at Ujjain and the attached ware houses and stock in trade and payment thereof to the appel lant is a condition precedent to take possession and deliv ery thereof to the respondent on August 28, 1981. At the outset we may make it clear that, though Sri Nariman con tended that the grant of licence to the respondent was in gross violation of the conditions of the tender as the respondent did not comply with any of the mandatory condi tions stipulated therein and the delivery of the possession of the distillery in pursuance of the illegal contract is without jurisdiction, we decline to go into this question, though prima facie may be plausible to be countenanced, for the 485 reasons that the grant of licence for the period of 1981 to 1986 to the respondent became final and expired by efflux of time. It was also contended by Sri Nariman that the valua tion made at Rs. 10,53,0 16.45 was not proper and contrary to the tender 's conditions which stipulated deposit of a minimum of Rs. 19 lacs by the respondent as a condition to grant licence, and that, therefore, the appellant is enti tled to valuation of at least Rs. 19 lacs. We decline to go into that question also since the relief of valuation was given up in the High Court. It is also clear from the record that the appellant had not cooperated in estimating the value and the Committee of designated officers, namely the Addl. Collector, the District Excise Officer, Astt. Commis sioner of Excise and Accounts Officers was compelled to go into the question and made an assessment of the value on January 5, 1984. That valuation was also not questioned in the writ petition. To find whether it is a condition precedent to fix the valuation of the plants and machinery of the distillery and the warehouses and the stock in trade and payment thereof before taking over possession and handing over the same to the incoming licencee, the material clause 50 to be looked into reads thus: "All the materials like buildings, still, machinery, drums, wood fuel, coal, mahua, bottling, machinery, bottles, spices, red sealing wax, coaltar, pilfer proof seals, crown corks, alongwith alu capsules, etc. belonging to the outgoing licensee purchased for the use of distillery and warehouses attached thereto, shall be valued before the expiry of the old contract and the commence ment of the new one by a committee appointed by the Excise Department in this behalf. The committee aforesaid shall be appointed by the Excise Commissioner under the previous sanc tion of the Government (Separate Revenue Department) and it shall consist of five members, namely (1) Collector or Additional Collector convenor, (2) Assistant Commissioner of Excise of the Division concerned member (3) Executive Engineer Technical member, (4) Accounts Officer of the Excise Department Member, and (5) Representative of the licensee Member. If the representative of the licensee remains absent in the committee at the appointed time, the remaining four members shall begin their work in his absence and no objection of the licensee in this respect shall be heard. The valuation made and agreed upon by the Committee shall be sanc tioned by the Excise Commis 486 sioner with such necessary changes as he deems fit and in case of difference of opinion amongst the members, the Excise Commissioner shall pass orders relating to disputed valua tion. The orders of Excise Commissioner shall be final and binding upon the licensee. Note: The valuation of sanctioned plant at the warehouses may be done by a committee consisting of some of the members of the above referred committee, subject to the orders of the Excise Commissioner, which shall be final and binding on the licensee. Prima facie, if the clause by itself is read in isola tion, it would indicate that prior fixation of the value and payment is a condition precedent. But in our view all the conditions of the licence, policy of the Act and Rule of the possession, manufacture, supply, sale and distribution of the rectified spirit or denatured spirit or liquor from the stage of manufacture in Distillery till retail sale to the consumer be viewed as an integrated whole and the human behaviour of the outgoing licensee also has to be kept in view. Any other view would disrupt smooth transition from the outgoing to the incoming licensee; hampers the continui ty of supply and sale of intoxicants and cause collosal loss of public revenue. So let us consider the relevant proposi tions from this background. Section 13 of the Act requires a licensee to manufacture intoxicants: (a) Licence is required for manufacture, etc. of intoxicants; (b) No intoxicant shall be manufactured or collected . . . (f) No person shall induce, keep in his possession any material. . for the purpose of manufacture of intoxicants, other than tari, except under the authority and subject to the terms and conditions of the licence granted in that behalf. Section 14 provides that: (a) establish a distillery in which spirit may be manufactured under licence granted under section 13 on such conditions as the Govt. may impose. 487 (C) license on such conditions as the State Govt. may impose the construction and working of the distillery and brewery; (c) establish or licence warehouses wherein any intoxicant may be deposited and kept without payment of duty, subject to payment of such fee as the State Govt. may direct. . Section 17 provides inter alia that no intoxicant shall be sold except under the authority and subject to the terms and conditions of licence granted in that behalf. Thus it is clear that establishment of a distillery or a warehouse; manufacture of intoxicants, spirit (country made liquor), the possession and distribution and sale thereof are regulated under the Act. The Govt. in exercise of its power under section 62 of the Act made rules regulating the control of distilleries and warehouses by Officers of the Excise Department, especially appointed by the Excise Commissioner for that purpose. Therefore, any licensee, under the Act and the Rules, be it incoming or outgoing, should have D 2 and D I licences for establishment of distillery and warehouses, possession of raw materials, manufacture of liquor or rectified spirit or denatured spirit and supply to the retail vendors of the area attached to the distillery. Any infraction is an of fence. It is settled law by several decisions of this court that there is no fundamental right to a citizen to carry on trade or business in liquor. The state under its regulatory power, has power to prohibit absolutely any form of activity in relation to an intoxicant, its manufacture, possession, import and export. No one can claim, as against the state, the right to carry on trade or business in any intoxicants, nor the state be compelled to part with its exclusive right or privilege of manufacture, sale, storage of liquor. Fur ther when the state has decided to part with such right or privilege to the others, then state can regulate consistent with the principles of equality enshrined under article 14 and any infraction in this behalf at its pleasure are arbitrary violating Article 14. Therefore, the exclusive right or privilege of manufacture, storage, sale, import and export of the liquor through any agency other than the state would be subject to rigour of Article 14. Vide Har Shankar & Ors. vs Dy. Excise & Taxation Commissioner & Ors., and State of M. P.v. Nandial Jaiswal. ; , 488 When the state was dealing with the grant of the privi lege of establishing or manufacturing intoxicants, rectified spirit or denatured spirit, spirit (country made liquor) in a distillery owned or regulated by it, and invites tenders in this regard it should conform to the rigour of article 14 of the Constitution. Admittedly, the licence of the appellant expired on March 31, 1981 and thereafter it had no right to manufacture and store at distillery in Ujjain and distribu tion as wholesaler of the country made liquor from the attached warehouses to the retail vendors within that area granted to the respondent. But for the stay granted by the High Court the operation of the respondent 's licence was to begin on April 1,198 1. The outgoing licensee, the appel lant, had to hand it over to the respondent on that date. The conditions in the licence P 2 postulate of mutual rights and obligations between the outgoing licensee to sell and the incoming licensee to purchase the plant and machinery of the distillery, stock in trade and also the machinery in the warehouse including the apparatus, etc. enumerated in the conditions either at the price fixed or agreed directly between the parties or fixed by the committee of the desig nated officers. In case of any difference in the valuation between the members, the Commissioner of the Excise or the State Govt. would fix the valuation, which was made final. The Committee designated was to be constituted with prior approval of the Govt. as per condition 50 to evaluate the plant and machinery of the distillery and some of them of the warehouses. Outgoing licensee also is entitled to repre sent in the Committee. On his non cooperation the rest of the four members of the Committee are empowered to determine the value. Clause 23(iii) provides that any dispute relating to valuation of the sanctioned plant shall be referred to the State Government and the decision of the State Govt. shall be final and binding on the parties to the dispute. Clause 2 thereof refers that the licensee shall made over the said distillery and warehouses buildings on the termination of the licence in as good condition as they were at the com mencement hereof excluding reasonable wear and tear. Clause 36(4) provides that any dispute relating to the sale of spirit or plant by the licensee or the valuation of the plant shall be referred to the State Govt. and the decision of the State Govt. shall be final and binding. Clause 39(1) in particular, mentions that at the commencement of the term of this licence, the licensee shall buy all sanctioned plant at the U j jain distillery including spare parts, furniture, motor trucks and fittings at a price to be fixed by the State Government. Licensee shall pay the price thereof within 30 days of the communication. Similarly, clause 41, 42(1) and clause 44 provide that the incoming licensee shall take on lease all 489 other buildings structures attached to the distillery at Ujjain on such conditions and terms as per Public Works Department Manual Vol. II within a period of one month of the intimation of the acceptance of the tender. Then comes clause 50 quoted hereinabove. The incoming licensee shall make payment within 30 days from the date of communication of the value. Therefore, the courts should adopt realism, pragmatism, practicality and the purpose envisaged under the Act and the rules in construing the relevant clauses in the licence. The purpose of the Act the rules made therein is to regulate the manufacture, distribution sale of the intoxicants, rectified spirit or denatured spirit, liquor, sale to consumers within the state of Madhya Pradesh. It is an on going process conducted through the licensing system, an exclusive privi lege of the state through the licences granted under form D 1 and D 2 in this behalf. The duration of the licence is fixed one. On expiry of the licence the outgoing licensee shall be bound to handover the distillery plant and machin ery therein, and warehouses attached thereto, the stock in trade and other apparatus and goods used for the manufac ture, storage and distribution. The outgoing contractor is entitled continue his business activity till the last date of the licence, namely March 31, of the ending year. The succeeding licensee would take over the business from the outgoing licensee on April 1 of the year of licence. Thus there should be no hiatus between taking over and handing over the manufacture, possession. storage of the wholesale business of the spirit (country made liquor) or rectified spirit or denatured spirit. Under these circumstances it will well nigh be impossible to assess the valuation of the entire stock in trade or plant and machinery in the distill ery or the warehouses till the last date. In addition the cooperation of the outgoing licensee is also necessary and expected as he would be in possesssion of the records of the previous purchases of the materials, or plant or machinery if any new additions are made etc. Unless they are made available, it is not possible to assess the value after giving due rebate or depreciation, etc. to the incoming licensee. The human nature and conduct would be such that the outgoing licensee, being the unsuccessful tenderer, would not cooperate in handing over possession of the dis tillery and stock in trade and would approach the High Court under article 226 of the Constitution as was done in this case. The incoming licensee has time of thirty days in case of stock in trade or three months in the case of plant and machinery from the date of communication to him to pay the value to the outgoing licensee. Keeping those circumstances at the back of our mind we decline to adopt lexographic strict construction of clause 50 which 490 would thwart continuity; create hiatus in smooth operation of manufacture, storage, distribution and sales of the intoxicants. Moreover, after the assessment is made and in case of any difference of opinion in the valuation or the outgoing licensee claims higher value the final arbiter would be in some cases like stock in trade, the Commissioner of Excise and in case of plant and machinery or warehouses the State Govt. After the decision of the Commissioner or the State Government, it shall be communicated to the suc ceeding licensee, who has been given maximum period of three months to make payment to the outgoing licensee. In the light of the scheme of valuation of the plant and machinery of the distillery, or the apparatus in the warehouses and the stock in trade, we hold that strict construction would lead to innumerable complications and loss of public reve nue. We are inclined to hold that before the expiry of the licence, if the outgoing licensee cooperates, the value can be fixed with consensus, payment should also be made within the time stipulated. In all other cases it could be done even after the expiry of the stipulated period. In that perspective we have no hesitation to hold that prior valua tion of plant and machinery in the distillery, stock in trade therein or the value of the machinery in the ware houses and stock of the liquor stored therein and payment thereof before taking possession and handing them over to the incoming licensee is not a mandatory, nor a condition precedent. Therefore, taking over possession from the appel lant on August 28, 1981 and handing over the plant and machinery, etc. to the respondent is not illegal. Undoubtedly this court, in Godhra Electricity case held that it is mandatory that a person who is deprived of his property, before its taking over, the value should be esti mated and the payment made or else it is illegal. But the ratio would be considered in the light of the setting there in. The licence granted under section 6 of the as amended in 1959 to produce electrical energy was acquired by the Electricity Board. Section 6(6) provides that where a notice exercising the option of purchasing the undertaking has been served upon the licence, the licensee shall deliver the undertaking to the State Electricity Board on expiry of the relevant period referred to in section 6(1). In that case the constitutional validity of section 6(6) was ques tioned which did not provide for payment before taking over of the undertaking as offending Article 19(1)(f) and (g) and article 14 of the constitution. While considering the constitu tional validity of section 6(6) this court held that valuation and payment is a condition precedent since the Act did not envisage any payment of interest subsequent thereto. Accord ingly this court directed redelivery of the undertaking 491 to the licensee subject to follow the procedure as per law laid down therein. In this case admittedly the conditions of licence are not questioned, but expressly given up in the High Court. Even before us the validity of the valuation has not been questioned. It cannot cut the branch on which the appellant sits to assail the constitutional validity of the conditions of the licence. Accordingly we have no hesitation to hold that the appellant is not entitled to the restitu tion of the plant and machinery of the distillery at Ujjain and the attached warehouses. The appellant though claimed that the value of the plant and machinery was too low, contrary 'to the specification in this behalf in tender condition and though we decline to go into the question, the appellant appeared to have smarted under apprehension that it had to face the plea of acquies cence, if it were to cooperate earlier. So it is open to the appellant to make a representation to the Govt. and any officer not below a Secretary preferably of the concerned Department would go into the matter and decide the value as per the material on record. It is open to the appellant to place all its material. It is also open to the respondent to place its material and the authority would consider after giving an opportunity of hearing through counsel, if asked for, and decide the value accordingly. As regards deposit now made in the Registry of this Court, the Registry is directed to make payment of a sum of Rs.53,016.45 and inter est accrued thereon to the appellant and the balance amount and the interest accrued on the residual to the respondent and the respondent 's liability would be subject to the decision by the Secretary as indicated in the judgment. The appeal is accordingly allowed to the above extent and since the appellant substantially failed there would be no order as to costs. Y.L. Appeal partly allowed.

The appellants and its predecessors continuously held licences under Sections 13 and 14 of the Madhya Pradesh Excise Act to distil rectified spirit or denatured spirit or liquor. The last of such licence which the appellant had related to the period from 1.4.1977 to 31.3.1981. The next licensing period commenced from 1.4.1981 to 31.3.1986 and the respondent Rajdhani Distilleries Corporation became the successful tenderer in respect thereof which the appellant impugned by means of a writ petition before the High Court but failed both before the High Court as also in this Court in a special leave petition. Thereupon the appellant was called upon twice to be present to deliver the possession of the distillery to the respondent but the appellant did not co operate. Likewise the appellant did not co operate in fixing the value of the plant and machinery of the distill ery and warehouses as a result of which a committee was appointed in terms of the licence which fixed a sum of Rs.10,53,016.45 p. as the total value payable to the appel lant. Due to the non cooperation of the appellant, the Excise Department took over the possession of the distillery after making inventory of stock in hand in the presence of the witnesses and the same was handed over to the respond ent. The appellant thereafter demanded redelivery of the distillery and on his failure to get the same it filed a writ petition in the High Court praying for a writ of manda mus seeking inter alia restitution of the distillery and the warehouses etc., challenging the quantum of valuation fixed. The High Court dismissed the writ petition. The High Court found that the appellant had no exclusive possession which always remained with the excise Department; the appellant worked out the contract of manufacturing rectified spirit etc. and that due to non cooperation of the appellant, possession was taken and delivered to the incoming licensee as per rules and the 479 480 appellant was not entitled to restitution. Hence this appeal by special leave. It is contended on behalf of the appellant that clause 50 enjoins the State to fix the valuation of all the materials belonging to the appellant and pay the same to it as an outgoing licensee, before taking over possession and handing over the distillery and the attached warehouses to the respondents. According to it, it is a condition precedent under clause 50 to dispossess the appellant and start the operation of the contract by the respondent which admittedly were not done. This is a contravention of the mandatory conditions of the licence and the rules. The respondents on the other hand contend that the appellant is not entitled to restitution as it was due to its non cooper ation, possession was taken. According to them prior valua tion and payment are not condition precedent to work out the licence. Partly allowing the appeal, this Court, HELD: In the light of the scheme of valuation of the plant and machinery of the distillery, or the apparatus in the warehouses and the stock in trade, the Court held that strict construction (of clause 50) would lead to innumerable complications and loss of public revenue. We are inclined to hold that before the expiry of the licence, if the outgoing licensee cooperates, the value can be fixed with consensus, payment should also be made within the time stipulated. In all other cases it could be done even after the expiry of the stipulated period. In that perspective the Court had no hesitation to hold that prior valuation of plant and machin ery in the distillery, stock in trade therein or the value of the machinery in the warehouses and stock of the liquor stored therein and payment thereof before taking possession and handing them over to the incoming licensee is not a mandatory, nor a condition precedent. Therefore, taking over possession from the appellant on August 28, 1981 and handing over the plant and machinery, etc. to the respondent is not illegal. [490C E] In this case admittedly the conditions of licence are not questioned, but expressly given up in the High Court. Even before us the validity of the valuation has not been questioned. It cannot cut the branch on which appellant sits to assail the constitutional validity of the conditions of the licence. Accordingly we have no hesitation to hold that the appellant is not entitled to the restitution of the plant and machinery of the distillery at Ujjain and the attached warehouses. [491A B] It is open to the appellant to make a representation to Government and any officer not below a Secretary preferably of the concerned 481 Department would go into the matter and decide the value as per the material on record. It is open to the appellant to place all its material. It is also open to the respondent to place its material and the authority would consider after giving an opportunity of hearing through counsel, if asked for, and decide the value accordingly. [491D] Godhra Electricity Co. Ltd. and Anr. vs State of Gujarat and Ors. , ; ; Hat Shankar & Ors. vs Dy. Excise of M. P.v. Nandial Jaiswal; , , Referred to.

Appeals Nos. 271 272 of 1955. Appeal by special leave from the judgment and order dated June 19, 1953, of the Calcutta High Court in Income tax Reference Nos. 6 & 7 of 1950. A.V. Viswanatha Sastri, A. K. Dutt, section K. Kapur and Sukumar Ghose, for the appellant. C.K. Daphtary, Solicitor General of India, R. Ganapathy Iyer, R. H. Dhebar and D. Gupta, for the respondent. November 13. The Judgment of the Court was delivered by VENKATARAMA AIYAR, J. The appellant was a Hindu undivided family carrying on business as piecegoods merchants in the city of Calcutta. The present proceedings relate to the assessment of its income for the year 1946 47, the previous year thereto being June 12, 1944, to April 24, 1945. In the course of the assessment, the appellant filed a petition under section 25 A of the Incometax Act, 1922, claiming that there had been a partition in the family on April 24,1945. On May 27,1945, the In. come tax Officer enquired into both these matters, the factum of partition and the quantum of income charge. able to tax, and pronounced orders thereon on June 30, 1945. On the petition under section 25 A, he held that the partition was true, and that the family had become divided into five groups. As regards the income assessable under section 23, the dispute related to six sums aggregating to Rs. 2,30,346 shown in the accounts as the sale proceeds of ornaments. The case of the appellant with reference to these sums was that at the partition the jewels of the family were sold in six lots, that the price realised therefrom was invested in the business, and that the credits in question related thereto. The Income tax Officer declined to accept this explanation. He observed that while the books of the appellant 417 showed that what was sold was ornaments, the accounts of Chunilal Damani to whom they were stated to have been sold, showed sale of gold. He also pointed out that while the weight of the ornaments according to the partition agreement, exhibit A, was 3422 tolas, the weight of gold which was actually sold to the purchaser was 3133 tolas. The explanation given by the appellant for this discrepancy was that the jewels in question had come down to the family through several generations, and were not pure. The Income tax Officer rejected this explanation, because he held that the weight which was actually deducted for impurities in the accounts of the purchaser was almost negligible, and that what was sold was thus pure gold and not gold in old family jewels. He also remarked that the sales were in round figures of 500 tolas, and that "if the assessee had been taking old ornaments broken or unbroken for sale it is inconceivable that on three occasions out of six he took gold weighing 500 tolas in round figure." He also referred to the fact that there was no list of the family jewels, and that there was nothing in the family accounts to show what jewels were held by the family. He accordingly held that the story of sale of family jewels was not true, and that the sum of Rs. 2,30,346 represented concealed profits of the business, and he included the said amount in the taxable income. He also followed it up by an order imposing tax on the appellant under the Excess Profits Tax Act. The appellant took both these orders in appeal to the Appellate Assistant Commissioner who again went into the matter fully, and observed that the appellant had been changing his version as to the true character of the sales from time to time. Dealing with the discrepancy of 289 tolas between the weight shown in the partition agreement, exhibit A, and that appearing in the accounts books of Chunilal Damani, he remarked that while the explanation of the appellant before the Income tax Officer was that it was due to alloy and brass in the jewels, before him the position taken up was that it was due to pearls and stones which 53 418 had been removed from the jewels, and that the gold contained in the jewels was pure gold. He did not accept this explanation as, in his opinion, the jewels which were stated to have been in existence for three or four generations should have contained much more of alloy than was shown in the accounts of the purchaser. He also considered that the sale of gold in round figures of 250 or 500 tolas was a circumstance which threw considerable doubt as to the truth of the appellant 's version. In the result, he confirmed the findings of the Income tax Officer, and dismissed the appeals. Against these orders, the appellant appealed to the Appellate Tribunal. There, he sought to rely on a certain proceedings book as showing that the family jewels were really broken up, and that what was sold to Chunilal Damani was the gold thus separated. As this proceedings book forms the real sheet anchor of the appellant 's contention before us, it is necessary to refer to the facts relating thereto in some detail. On February 20, 1945, the members of the family entered into an agreement, exhibit A, to divide their joint proper. ties among the five branches, of which it was constituted. In sch. B to this document are set out the jewels to be divided, and their total weight is, in round figure, 3422 tolas. Then we have the proceedings book, and that purports to be a record of the decisions taken by the members of the family from time to time for implementing exhibit A. The minutes of the meeting held on February 23, 1945, show that the pearls and stones imbedded in the jewels were to be removed and divided among the members, and that a goldsmith called Inderban was engaged for the purpose of breaking up the jewels. Then we have the minutes of a meeting held on February 28, 1945, and therein, it is recited that the weight of the pearls, stones and copper removed was, again in round figure, 289 tolas, and deducting this out of 3422 tolas being the weight of the jewels set out in exhibit A, the gold which was available for partition was 3133 tolas. It is recorded that this quantity should be sold in the market and the sale proceeds credited in the capital accounts of the business. And then we have the last of the proceedings dated April 21, 419 1945, which record that gold weighing 3133 tolas was sold and the price credited in the accounts. Now, if these minutes are genuine and give a correct picture as to what really took place, they would go a long way to support the version given by the appellant as to how he came by the sums making up a total Rs. 2,30,346. Quite naturally, therefore, the appellant applied to the Tribunal to receive the proceedings book in evidence, and the ground given in support of the application was that it had been filed before the Income tax Officer but had not been considered by him. Then the question was raised as to whether the proceedings book was, in fact, produced before the Incometax Officer. The argument of the appellant was that the decision taken at the meeting dated April 21, 1945, which forms the concluding portion of the book had been translated into English at the instance of the Income tax Officer, the original being in Hindi, that the said translation was marked exhibit B and contained the endorsement of the Officer " Original produced ", and that accordingly the book must have been produced before the Officer. But the Tribunal was not impressed by this argument. It observed that the book iselft had not been initialled by the Officer, and that though the minutes of the meeting dated April 21, 1945, were genuine, there was no certainty that when it was shown to the Income tax Officer it was contained in the book now produced, that such minutes could have found a place in another book as well, and that, therefore, the book which was sought to be admitted before it in evidence was not proved to be the book which was produced before the Officer. It was also of the opinion that the minutes of the previous meetings could not have been shown to the Officer. It accordingly refused to receive the book in evidence, and relying on the other circumstances mentioned in the order of the Income tax Officer and the Appellate Assistant Commissioner, it held that the sum of Rs. 2,30,346 was not the proceeds of the family jewels sold but secret profits made by the appellant in business. Another contention raised by the appellant before 420 the Tribunal was that in the proceedings under section 25A, the Income tax Officer had held, after making enquiry, that the partition set up by it was true, and that as according to the appellant, the partition consisted in the division, inter alia, of family jewels weighing 3422 tolas, the Income tax Officer must be held to have decided that the family was in possession of the jewels mentioned in exhibit A and had divided them in the manner set out in exhibit B, and that as that order had become final, it must conclude the present question in favour of the appellant. The Tribunal repelled this contention on the ground that the order under section 25A only decided that there was partition in the family, and that it had no bearing on the issues which arose for decision in the assessment proceedings. In the result, both the appeals were dismissed. Pursuant to an order of the High Court of Calcutta dated December 7, 1950, passed under section 66(2) of the Act, the Tribunal referred the following questions for its Opinion: (1)" Whether the Income tax Appellate Tribunal was bound by the findings of fact of the Income tax Officer relating to the nature and division of the assets of the joint family in question which he arrived at in his enquiry under Section 25A(l) of the Indian Income tax Act ? (2)Whether there was any material or evidence upon which the taxing authorities could legally hold that the amount of Rs. 2,30,346 (Rupees two lakhs thirty thousand three hundred and forty six) represented undisclosed profits of the accounting year in question ? " The reference was heard by Chakravarti, C. J., and Lahiri, J., who by their judgment dated June 19, 1953, answered the first question in the negative and the second in the affirmative. The appellant then filed an application under section 66A(2) for leave to appeal to this Court, and that having been dismissed, has preferred the present appeals on leave granted by this Court under article 136. Mr. Viswanatha Sastri, learned counsel for the appellant, raised the following contentions: 421 (1) In view of the order of the Income tax Officer under section 25A, it was not open to the Department to contend that the sum of Rs. 2,30,346 does not represent the value of family jewels. (2)The finding of the Income tax authorities that the said amount represents concealed profits of business is not supported by legal evidence and is, in any event, perverse. (3)There is no evidence that the amount in question represents profits of business, and it was therefore not chargeable to tax under the provisions of the Excess Profits Tax Act. (1)On the first question, the appellant relied on certain observations in the order of the Income tax Officer passed under section 25A as amounting to a decision that the family had the jewels mentioned in exhibit A, and that what was actually divided was only the price received therefor. Now, when a claim is made under section 25A, the points to be decided by the Income tax Officer are whether there has been a partition in the family, and if so, what the definite portions are in which the division had been made among the members or groups of members. The question as to what the income of the family assessable to tax under section 23(3) was, would be foreign to the scope of an enquiry under section 25A. That section was, it should be noted, introduced by the Indian Income tax (Amendment) Act, 1928 (3 of 1928), for removing a defect which the working of the Act as enacted in 1922 had disclosed. Under the provisions of the Act as they stood prior to the amendment, when the assessee was an undivided family, no assessment could be made thereon if at the time of the assessment it had become divided, because at that point of time, there was no undivided family in existence which could be taxed, though when the income was received in the year of account the family was joint. Nor could the individual members of the family be taxed in respect of such income as the same is exempt from tax under section 14(1) of the Act. The result of these provisions was that a joint family which had become divided at the time of the assessment escaped tax altogether. To 422 remove this defect, section 25A enacted that until an order is made under that section, the family should be deemed to continue as an undivided family. When an order is made under that section, its effect is that while the tax payable on the total income is apportioned among the divided members or groups, all of them are liable for the tax payable on the total income of the family. What that tax is would depend on the assessment of income in proceedings taken under section 23, and an order under section 25A would have no effect on that assessment. It is in this context that we must read the observations in the order under section 25A relied on for the appellant. In fact, that order does not expressly decide that the family had the jewels mentioned in exhibit A, and that they were converted into cash as claimed by the appellant. Nor could such a finding be implied therein, when regard is had to the scope of the proceedings under section 25A and to the fact that the order under section 23(3) holding that the sum of Rs. 2,30,346 did not represent the value of the family jewels sold was passed on the same date as the order under section 25A and by the very same officer. (2)The next question is and that is what was really pressed before us whether the sum of Rs. 2,30,346 represents the price of family jewels sold or whether it is concealed business profits. That clearly is a question of fact the finding on which is open to attack in a reference under section 66 only if it could be shown that there is no evidence to support it or that it is perverse. Now, the contention of Mr. Viswanatha Sastri for the appellant is that the finding that it is concealed profits was reached by the Income tax Officer and by the Appellate Assistant Commissioner by ignoring the very material evidence furnished by the proceedings book, and that the Appellate Tribunal had erroneously refused to receive the book in evidence. This contention raises two controversies: (i) Was the proceedings book which was produced before the Tribunal the book which was produced before the Income tax Officer ? (ii) If it was, were the minutes of the meeting prior to April 21, 1945, relied on by the appellant before the Income tax Officer ? Whatever 423 view one might be inclined to take on the former question, so far as the latter is concerned, it is perfectly plain that they were not. On May 27, 1947, the enquiry was held on both the petitions under s, 25A and on the quantum of income assessable to tax under section 23(3). Exhibit D is an extract from the order sheet of the Income tax Officer, and it runs as follows: "Regarding credits amounting to Rs. 2,30,346 6 3 in the a/c. Udoyaram Bhaniram the representatives state that besides the evidence produced, which are noted below, they are not in a position to produce any further evidence, (i) Account books of the assessee containing the details of the amounts aggregating the aforesaid sum. (ii) Sale statements rendered by Chunilal Damani,copies of which have been filed. (iii)Roker of Chunilal Damani containing entries for purchase of gold, sold by the assessee family along with Surajrattan Bagri the accountant of Chunilal Damani. (iv) Statement of Lakhmichand Bhiwaniwalla and Pannalal Bhiwaniwalla, member of the assessee family. " This statement is signed by the counsel for the appellant. It is clear from the above that the proceedings book was not relied on as evidence on the character of the receipts making up the sum of Rs. 2,30,346. The fact appears to be that the appellant produced the proceedings book in support of his petition under section 25A for the purpose of establishing that there was a completed partition, and relied only on the minutes of the meeting held on April 21, 1945, in proof thereof, and that is why that alone was translated in English and marked as exhibit B. It is also to be noted that there is no reference in the order of assessment by the Income tax Officer under section 23(3) to the minutes of the meetings prior to April 21, 1945, and that they were not even translated, as was the record of the meeting dated April 21, 1945. The obvious inference is that they were not relied on by the appellant, and were therefore not considered by the Officer. It is also 424 significant that the order of the Income tax Officer refers to sale of ornaments broken or unbroken. The story that the gold which was separated from the jewels after removing the pearls and stones was melted and sold in quantities of 250 or 500 tolas, which was the argument pressed before us, was not put forward before him. It is argued that in the appeal against the order of the Income tax Officer the ground was definitely taken that the proceedings book had been produced before him, and that it was also prominently mentioned in a petition supported by affidavit filed by the appellant. But the order of the Appellate Assistant Commissioner does not deal with this matter either, and it is inconceivable that he would have failed to consider it if it had been pressed before him. It is also to be noted that the appellant who had obtained a return of the proceedings book from the Income tax Officer did not file it before the Appellate Assistant Commissioner, nor did he move for its admission in evidence. Apart from taking the grounds to which we were referred, the appellant appears to have presented his case before the Appellate Assistant Commissioner precisely on the same lines on which lie pressed it before the Income tax Officer. In view of these facts, we are unable to hold that in refusing to admit the proceedings book as evidence in the appeal, the Appellate Tribunal acted perversely or unreasonably. Indeed, counsel for the appellant did not contend in the High Court that the Tribunal had acted illegally or unreasonably in refusing to admit the proceedings book in evidence. That being so, it cannot be said that the finding given by the Tribunal on an appreciation of the facts and circumstances already set out is unsupported by evidence or is perverse. The position may thus be summed up: In the business accounts of the appellant we find certain sums credited. The explanation given by the appellant as to how the amounts came to be received is rejected by all the Income tax authorities as untenable. The credits are accordingly treated as business receipts which are chargeable to tax. In V. Govindarajulu 425 Mudaliar vs The Commissioner of Income tax, Hyderabad (1), this Court observed: " There is ample authority for the position that where an assessee fails to prove satisfactorily the source and nature of certain amounts of cash received during the accounting year, the Income tax Officer is entitled to draw the inference that the receipts are of an assessable nature. " That is precisely what the Income tax authorities have done in the present case, and we do not find any grounds for holding that their finding is open to attack as erroneous in law. (3)Lastly, the question was sought to be raised that even if the credits aggregating to Rs. 2,30,346 are held to be concealed income, no levy of excess profits tax can be made on them without a further finding that they represented business income, and that there is no such finding. When an amount is credited in business books, it is not an unreasonable inference to draw that it is a receipt from business. It is unnecessary to pursue this matter further, as this is not one of the questions referred under section 66(2). In the result, the appeals fail and are dismissed with costs. Appeals dismissed. (1) , 810.

The appellant, a real estate company, was engaged in the business of letting out its property on lease, Besides it was also rendering various services to its tenants such as electricity and water supply, washing and cleaning, lift services, electrical and sanitary repairs on payment basis. For rendering these services the appellant company employed a number of workmen. A dispute arose between the employees and the appellant company with regard to wages, scales of pay, dearness allowance and gratuity. The State Government re ferred the disputes to Industrial Tribunal for adjudication. The appellant company contested the reference before the Tribunal by raising a preliminary objection that the alleged dispute was not an industrial dispute and that the reference was barred by Section 19 of the since there was an earlier binding award, based on settlement with the Union, which was not terminated by either parties. 934 By an order dated August 24, 1968 the Tribunal overruled the preliminary objection and gave the award dated March 3. 1969 enhancing the dearness allowance of the employees. The Tribunal also framed a revised gratuity scheme but did not fix any grades and pay scales of workmen for want of con vincing evidence. The appellant company filed a writ petition in the High Court challenging the Tribunal 's order dated August 24, 1968 as well as the Award dated March 7, 1969 contending: (i) that the Award was without jurisdiction because the appel lant company was not carrying on 'industry ' and the alleged dispute was not an 'Industrial Dispute ' and that the previ ous Award was not terminated and was still subsisting; (ii) that no dispute was raised between the workmen and the appellant prior to the reference before the Tribunal; and (iii) that the Tribunal did not consider the appellant 's capacity to pay dearness allowance to the workmen. A single judge of the High Court dismissed the writ petition by rejecting all the contentions. The appellant filed an appeal against the judgment of the single judge before a Division Bench of the High Court which was also dismissed. Against the decision of the Division Bench of the High Court the appellant company filed an appeal to this Court, contending: (i) that the High Court was in error in holding that the appellant was an 'industry ' under Section 2(j) of the Act; (ii) that the Tribunal was not competent to make the Award since the earlier Award, which was in the nature of a settlement under Section 2(p), was not terminated in accordance with section 19(2) by giving a formal written notice; (iii) that there was non compliance with the provi sions of Section 19(7) of the Act; and (iv) that the Indus trial Tribunal was in error in making the Award in relation to Dearness Allowance without examining the capacity to pay the additional amount and that the High Court should have remanded the matter to the Tribunal for considering this issue in the light of the documents which were submitted by the appellant before the High Court. Dismissing appeal, this Court, HELD: 1. The activity carried on by the appellant compa ny falls within the ambit of the expression "industry" defined in Section 2(j) of the . The Award of the Industrial Tribunal cannot, there fore, be assailed on the basis that the appellant is 935 not carrying on an 'industry ' under the Act. [943E] Bangalore Water Supply & Swerage Board v .R. Rajappa and Ors., ; , applied. Management of Safdar jung Hospital vs Kuldip Singh Sethi, ; ; State of Bombay vs Hospital Mazdoor Sabha, ; ; D.N. Banerjee vs P.R. Mukherjee, ; and Corporation of the City of Nagpur vs Its employees; , , referred to. 2. It is not the requirement of Section 19(2) of the that there should be a formal notice terminating a settlement, and notice can be inferred from the correspondence between the parties. [944B] Indian Link Chain Manufacturers Ltd. vs Their Workmen, [1972] I SCR 790, applied. 2.1 In view of the finding of the Division bench that the letter of employees Union dated November 24, 1966 was a notice under section 19(6) as well as section 19(2) of the and that the said letter contained a clear intimation of the intention of the employ ees to terminate the Award, the High Court was justified in holding that the earlier award had been validly terminated before the passing of the order of reference. [943H; 944A B ] 3. The High Court was right in taking the view that while exercising its jurisdiction under Article 226 of the Constitution the High Court should generally consider the materials which were made available to the Tribunal and fresh or further materials which were not before the Tribu nal should not normally be allowed to be placed before the Court. [944F G] 3.1 In the instant case the appellant has not been able to show why the documents relied on by it were not produced before the Tribunal. Therefore there is no justification for accepting the plea of the appellant for reconsideration of the Award of the Tribunal in the light of the documents submitted by the appellant during the pendency of the appeal before High Court. [944G H] 4. A question raised for the first time in the Supreme Court involving an inquiry into questions of fact cannot be allowed to be agitated. [944E] 936

Appeal No. 1901 of 1970. (From the Award dated 4/6.3.1970 of the Industrial Tribunal Maharashtra in Ref. (I.T.) No. 158/67, published in Maharashtra Govt. Gazette, Part I L dated 16 4 1970). F.V. Kaka, F.A.K. Faisulla Bhai, O.C. Mathur and D. N Mishra for the Appellant. F.D. Damania and B.R.Agarwala for Respondent No. 2. Y.S. Chitale, P.H. Parekh and Miss Manjit Jelley, for Respondent No. 3. The Judgment of the Court was delivered by GOSWAMI, J. This appeal by special leave brings forth a rather disquieting feature of union rivalry whereby the significance of collective bargaining which is the forte of a union, is sought to be made 17 a flop. We say this in the absence of any suggestion of mala fides or of any other ulterior motive alleged by .the contending union on time part of the rival union or its principal officer who had negotiated a certain settlement on behalf of the workmen in substitution of the award of the Industrial Tribunal out of which this appeal arose. The appellant before us is the employer, supported, whole hog, by the Bombay General Kamgar Sabha, respondent NO. 3.Respondent No. 2 is the only contending union, viz. ,Mum baiMazdoor Sabha. On May 18, 1967, there was a :reference by the Govern ment of Maharashtra of an industrial dispute under section 10(1)(d).of the Industrial Disputes Act to the Industrial Tribunal for adjudicating eight demands such as, wage scales, adjustment of. increments, classification of workmen into different grades, dearness allowance, restropective effect of the claim from 1st June, 1966, gratuity, sick leave and wages for Sundays and holidays when called upon to .Work The dispute was between the D& P Products (Private) Limited, Bombay and their workmen. A written statement was submitted 'by the Mumbai Mazdoor Sabha (2nd respondent), claiming to represent the majority of the workmen on: July 25, 1967. It appears that this written statement was signed by V. section Pandit as General Secretary. The company submitted their written statement on August 17, 1967, in which; inter alia, they pleaded. incapacity to have greater burden on account of financial position. It was stated that the company had been making losses year after year since 1963 64 During the pendency of the dispute before the Tribunal, D & P Products (Private) Limited was amalgamated .with Herbertsons Ltd. (the appellant) (hereinafter to be de scribed as the company) with effect from 1.10.1968 under the provisions of the" Companies Act by an order of the Bombay High ' Court dated 6th January, 1969. The wage scales existing at the time. of the reference were as follows : Unskilled Rs. 1.25 0.10 2.25 Semi skilled Rs. 1.50 0.15 3.00 Dearness allowance Rs. 2.16 per day. The demand of the workmen on the other hand was as follows. Unskilled Rs. 1.50 0.15 3.00 per day Semi skilled Rs 1.75 0.20 3.75 " " Skilled Rs. 2.50 0.30 5.50 " " Highly skilled Rs. 3.50 0.45.8.00 " " Dearness allowance "as paid to. the Bombay Textile Oper atives". 3 1458SCI/76 18 The Tribunal (Shri R.D. Tulpule) made its award on March 4, 1970. As regards the demand for wages and dearness allowance, the award of Tribunal was as follows : Grade I Rs Plus Revised (Unskilled) 1.30 0. 12 2.50 Textile dearness allowance. Grade II B (Semi skilled) 1.40 0.15 3.20 do A (Semi skilled) 1 60 0.30 3.60 do Grade III 1.80 0.20 2.80 0.25 4.80 do (Skilled) The company preferred an application for special leave to this Court on May 12, 1970, against the award. On May 25, 1970, certain consent terms for staying the award were filed by the parties without prejudice to the rights in the appeal whereby the company agreed to pay Rs. 2.50 as addi tional dearness allowance per day from October 1, 1968. This Court admitted the special leave petition and posted the stay application for hearing on September 24, 1970, on which date in modification of the earlier stay order the parties further agreed that from 1st September, 1970, till the disposal of the appeal, the total dearness allowance would be calculated at Rs. 5/ per day irrespective of the index figures. On February 22, 1973, the company agreed to increase the dearness allowance further by 80 paise with effect from January 1, 1973. From June 1973 certain new developments took place. On June 7, 1973, a letter was received by the company from the 3rd respondent, Bombay General Kamgar Sabha, stating that all the workers of the company had resigned from the 2nd respondent union (Mumbai Mazdoor Sabha) and joined the 3rd respondent union. On June 7, 1973, the 3rd respondent sent a communication to the respondent No. 2 with a copy to the company enclosing a letter signed by the workers stating that they had resigned from the 2nd respondent union. On June 25, 1973, the 3rd respondent sent a reminder to the company to recognise the Bombay General Kamgar Sabha. By a letter dated 2nd/5th July, 1973, to the President, Bombay General Kamgar Sabha, who was incidentally the same V.S. Pandit who had earlier submitted the written statement in behalf of the Mumbai Mazdoor Sabha, the company granted recognition to the Bombay General Kamgar Sabha and informed the 2nd respondent of its derecognition. On October 18, 1973, the company entered into a memorandum of settlement with the Bombay General Kamgar Sabha which was in substitution of the award which was pending appeal before this Court. Copies of this settlement were forwarded to the Secretary to the Government of Maharashtra, Industries and Labour Department, the Commissioner of Labour, the Deputy Commissioner of Labour and the Conciliation Officer. It is common ground that this is a settlement under section 18 (1) of the Industrial Disputes Act. The 3rd respondent applied to this Court to be substi tuted if place of the 2nd respondent and the Other union. The 2nd respondent 19 alone resisted the application claiming that it had still the allegiance of 50 workmen of the company. This Court allowed the Bombay General Kamgar Sabha to be added as the 3rd respondent. The company also submitted a petition to this Court to decide the appeal in terms of the memorandum of settlement dated October 18, 1973. This Court on December 19, 1974, passed the following order : "The number of workmen concerned in this industrial dispute is 210. The appellant employer and the 3rd respondent union which claims to have 193 members on its rolls have entered into a settlement. The 2nd respondent union which claims to have about 55 members on its rolls has not yet accepted the settlement. We think it just, therefore, to pass the same kind of preliminary order that was passed in Amalgamated Coffee Estate vs Their workmen in the following terms : "In view of the fact that admittedly a large number of workmen employed by the appellant have accepted the settlement, is it shown by the 2nd respondent union that the said settlement is not valid and binding on its members and whether the settlement is fair and just?" "The Industrial Tribunal, Maharashtra, would consider the issue and submit its finding within two months from this date. After the finding is received, the appeal would be set down for hearing. Parties should be allowed to lead evidence. " When the matter went back, it appears that respondent No. 2 did not lead any evidence before the Tribunal (Shri D.L. Bhojwani). The company and the 3rd respondent, on the other hand, examined 7 witnesses including V.S. Pandit, the President of the 3rd respondent union. Certain documents were also filed before the Tribunal by the parties. The Tribunal after hearing the parties in due course recorded its findings on September 9. 1975 and forwarded the same to this Court. The findings of the Tribunal recorded are as follows : (1) Respondent 2 the Mumbai Mazdoor Sabha has been able to prove that the Disputed Settlement is not valid and binding on its members. (2) The Disputed Settlement is incomplete to the extent mentioned above. (3) The scheme of D.A. provided for in the Disputed Settlement in so far as it affects workmen at or just above the subsistence level is not fair, just and reasonable. (4) The rest of the Disputed Settlement is fair, just and reasonable. " 20 That is how this appeal has come up for bearing before us. The first question that arises for consideration is whether the findings. of the Tribunal are sustainable. The appellant and respondent No. 3. with one voice, have as sailed the findings 1 to 3 whereas the 2nd respondent has supported all the findings. It is strenuously submitted by the 2nd respondent that there is no reason why we should interfere with the findings of fact returned by the Tribunal and relying upon these it is further contended that we should hear the appeal on the merits ignoring the settlement altogether. Before we proceed further it is necessary to appreciate the implication of the order of this Court passed on Decem ber 19, 1974, set out earlier. This order was passed after hearing the parties for some time when the appeal was first called for hearing on December 19, 1974. From the recitals in the order it is apparent that the parties were prepared to abide by the settlement if the same was fair and just. We are not prepared to accept the position, as urged by the 2nd respondent, that even if the settlement is binding on the parties executing the document, namely, the company and the 3rd respondent representing a large majority of the workmen, since the same is not binding on the members of the Mumbai Majdoor Sabha Union, howsoever small the number, under section 18 (1) of the Industrial Disputes Act, the appeal should be heard on merits. On the other hand, we take the view that after hearing the parties this Court was satisfied when it had called for a finding of the Tribunal that if the settlement was fair and just it would allow the parties to be governed by the settlement substituting the award. The wording of the issue sent to the Tribunal for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were their members upon whom they could clearly assert that the settlement was not binding under section 18(1) of the Indus trial Disputes Act. It cannot be assumed that the parties were not aware of the implications of section 18(1) of the Industrial Disputes Act when the Court passed the order of December 19, 1974. This Court would not have sent the case back only to decide the legal effect of section 18(1) of the Industrial Disputes Act. Since a recognised and registered union had entered into a voluntary settlement this Court thought that if the same, were found to be just and fair that could be allowed to be binding on all the workers even if a very small number of workers were not members of the majority union. It is only in that context that after hear ing the parties the case was remanded to the Tribunal for a finding on the particular issues set out above. The numerical strength of the members of the 2nd re spondent, who are workers of the company, would also have an important bearing as to whether the settlement accepted by the majority of the workmen is to be considered as just and fair. In that view of the matter we are unable to appreci ate that the 2nd respondent did not choose it fit to produce evidence to show the actual number of the workers of the company having membership of the 2nd respondent. It is rather odd that not a single worker of the company claimed before the Tribunal 21 to be a member of the 2nd respondent and to assert that the settlement was not fair and just. This is particularly so when all the workers of the company have accepted the settlement and also received the arrears and emoluments in accordance with the same. The Tribunal thought that the question of the quantum of membership of the 2nd respondent did not call for a finding at all in view of 1his Court 's order. As observed above that was not a correct assumption. On the other hand, we feel that this view of the Tribunal has led it to approach the matter in an entirely erroneous manner. The Tribunal is, rightly enough, conscious that under section 18 (1) of the Industrial Disputes Act the settlement was binding on the company and the members of the 3rd respondent union. Even so, the Tribunal devoted nearly half of its order in scanning the evidence given by the company and respondent No. 3 to find out whether the terms of the settlement had been explained by the President of the union to the workmen or not and whether the workers voluntarily accepted the settlement knowing all the "consequences". This to our mind is again an entirely wrong approach. When a recognised union negotiates with an employer the workers as individuals do not come into the picture. It is not necessary that each individual worker should know the implications of the settlement since a recognised union, which is expected to protect the legitimate interests of labour, enters into a settlement in the best interests of labour. This would be the normal rule. We cannot altogeth er rule out exceptional cases where there may be allegations of mala fides, fraud or even corruption or other induce ments. Nothing of that kind has been suggested against the President of the 3rd respondent in this case. That being the position, prima facie, this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration. It is true that in the course of evidence given by the 'President as also by two workmen and other officers of the company the Tribunal has found certain discrepancies. For example, the President in the course of cross examination stated that since the workers had already agreed he only tried to improve upon the settlement by negotiating .with the company for 85% and 871/2% dearness allowances instead of 80% earlier agreed to by the workers on their own. We do not think that this admission by the President would reduce the efficacy of the settlement or affect its validity. It may be that negotiations had been going on for some time and even some important workers had been individually approached by the management, but it is clear that the President of the union had taken upon himself the responsibility for the settlement upon which he. on his own turn, succeeded in making some effective improvements beneficial to the Work men. The Tribunal further made some observations that Shri Pandit was actually unaware of the consequences that would ensure to the workmen as a result of the settlement Reading the evidence of Shri Pandit as a whole. we, however. find "hat it cannot be said that he was unaware of the conse quences. We are also unable to hold that he had knowingly and deliberately suppressed the fact about the importance of the consequences 22 to the workers if the settlement were accepted. As a matter of fact it has been stated by the workmen. who were exam ined, that Shri Pandit did mention that they would lose Rs. 12/ to Rs. 15/ in dearness allowance if the settlement superseded the award. Mathematically this may not be correct as perhaps, on account of the rise of consumer price index, the loss in dearness allowance could have been even double the figure given by the President. That, however, per se, does not make the settlement unfair or unreasonable. It is found by the Tribunal that in the matter of wages the settlement has given better terms and that the same cannot be said to be unfair. The Tribunal has stated in more than one place that the only objection to this settle ment levelled by the 2nd respondent is with regard to the quantum of dearness allowance. While the award has given the Revised Textile dearness allowance, the settlement has substituted 86% and 871/2% of the Revised Textile allowance for the first and the second period respectively. While the award is for one year, subject to the provisions of the Industrial Disputes Act, the settlement is for a period of three years. Having regard to the totality of the terms of the settlement we are unable to agree with the Tribunal that the terms are in any way unfair or unreasonable. Besides, the settlement has to be considered in the light of the conditions that were in force at the time of the reference. It will not be correct to judge the settle ment merely in the light of the award which was pending appeal before this Court. So far as the parties are con cerned there will always be uncertainty with regard to the result of the litigation in a court proceedings. When, therefore, negotiations take place which have to be encour aged, particularly between labour and employer in the inter est of general peace and well being, there is always give and take. Having regard to the nature of the dispute, which was raised as far back as 1968, the very fact the existence of a litigation with regard to the same matter which was bound to take some time must have influenced both the par ties to come to some settlement. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust. There are three categories of workers, permanent work ers, listed casual workmen and certain other casual workmen. It is said that the third category of workmen are employed seasonally for a period of 20 days or so. Their number is also said to be not more than 20 or 30. The terms and conditions relating to this category of casual workmen were left, under the settlement, to be mutually decided by the parties. It is because of this feature in the settlement that the Tribunal held that the settlement was incomplete. We are, however, informed that as a matter of fact by mutual agreement some terms have been settled even for this third category of casual workmen. At any rate, because no deci sion was arrived at with regard to this small number of seasonal workmen, it cannot be said that the settlement is bad on that account. 23 The Tribunal next dealt with the principles applicable in granting dearness allowance to workers. It is while dealing with this part of the Tribunal 's award that Shri Damania for the 2nd respondent sought to make a strong plea in favour of sustaining the award by disregarding the set tlement. According to counsel the wage level of the workers is more or less at subsistence level and, therefore, cent per cent neutralisation of the cost of living or, at any rate, 95% neutralisation should have been allowed while setting dearness allowance. Since the Tribunal has rightly taken that settled principle into consideration and the settlement has departed from it, the same should be held as unjust and unfair to the workmen. We should point out that there is some misconception about this aspect of the case. The question of adjudication has to be distinguished from a voluntary settlement. It is true that this Court has laid down certain principles with regard to the fixation of dearness allowance and it may be even shown that if the appeal is heard the said principles have been correctly followed in the award. That, however, will be no answer to the parties agreeing to a lesser amount under certain given circumstances. By the settlement, labour has scored in some other aspects and will save all unnecessary expenses in uncertain litigation. The settle ment, therefore, cannot be judged on the touchstone of the principles which are laid down by this Court for adjudica tion. There may be several factors that may influence parties to come to a settlement as a phased endeavour in the course of collective bargaining. Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding fric tion and unhealthy litigation. This is the quintessence of settlement which courts and tribunals should endeavour to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication. The Tribunal fell into an error in invoking the principles that should govern in adjudicating a dispute regarding dearness allowance in judging whether the settlement was just and fair. Mr. Damania has drawn our attention to several authori ties of this Court with regard to the principles of fixation of dearness allowance including the recent decision of this Court in Killick Nixon Limited vs Killick & Allied Companies Employees Union and earnestly submitted that there is a "peremptive necessity" to grant cent per cent or at any rate 95% neutralisation of the cost of living as dearness allowance (5th principle of Killick Nixon Limited supra). Even the Tribunal has relied upon the above decision. But, as we have pointed out, that is not the correct way to decide whether a settlement voluntarily arrived at by the parties is just and fair. The matter would have been abso lutely different if on the face of it the settlement was highly unconscionable or grossly unjust. Even according to the Tribunal, the reduction of the dearness allowance to 85% and 871/2% from cent per cent is the only objectionable feature to enable it to hold that that part of the (1)[1975] Supp. S.C.R. 453. 24 settlement is unjust and unfair. The Tribunal found that all other terms of the settlement were "fair, just and reasonable". It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settle ment as unfair and unjust. The settlement has to be accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust. Even before this Court the 3rd respondent representing admittedly the large majority of the workmen has stood by this settlement and that is a strong factor which it is difficult to ignore. As stated elsewhere in the judgment, we cannot also be oblivious of the fact that all workmen of the company have accepted the settle ment. Besides, the period of settlement has since expired and we are informed that the employer and the 3rd respondent are negotiating another settlement with further improve ments. These factors, apart from what has been stated above, and the need for industrial peace and harmony when a union backed by a large majority of workmen has accepted a settlement in the course of collective bargaining have impelled us not to interfere with this settlement. That being the position, we unhold the settlement as fair and just and order that the award of the Tribunal shall be substituted by the settlement dated October 18, 1973. The said settlement shall be the substituted award. The appeal is disposed of accordingly. There will be no order as to costs. B.P.R. Appeal dismissed.

A permanent lecturer 's post fell vacant in the appellant University, and the Executive Committee which ordinarily made the appointment under section 23(1) (g) of the Varanasaya Sanskrit Vishwa Vidyalaya Adhiniyam, 1956, not being in session, the Vice Chancellor exercised his emergency powers under section 13(7) of the Act to appoint the respondent on the recommendation of a Selection Committee of the University. Later, the Executive Committee, when apprised of the ap pointment, refused to treat it as permanent and decided to re advertise the post. The respondent 's suit for permanent injunction against the termination of his services was dismissed by the Trial Court but decreed on appeal. On second appeal, the High Court upheld the decree. The respondent contended that his appointment by the Vice Chancellor, made under section 13(7), was permanent and could not be nullified by the Executive Committee as its resolution was collusive and inoperative. Allowing the appeal, the Court, HELD: (1) The extraordinary power under section 13(7) of the Act are intended for certain emergent situations necessitat ing "immediate action. " The Vice Chancellor has to report the action taken to the authority or other body "which in the ordinary course would have dealt with the matter" The object of such a report is to leave the final decision to that body when it does meet. The Executive Committee had the final power to appoint and to specify conditions of service under section 23(1)(g) of the Act. The powers of the Vice Chancellor were confined to making a tentative decision which was subject to confirmation by the Executive Commit tee. [216 G H, 217 B C] (2) It is not enough to state, in general terms, that there was "collusion" without particulars. By general allegations of alleged collusion, the plaintiff respondent seemed to imply some kind of fraud, but no such particulars of that fraud or collusion were given as would satisfy the requirements of Order VI Rule 4, Civil Procedure Code. [217 E F] Bishundeo Narain & .Anr. vs Seogeni Rai & Ors. ; at 556, applied.

Civil Appeal No. 367 & 368 of 1984 From the Judgment and order dated 17.5.1983 of the Madras High Court in W.P. No. 5008 of 1980 and 5304 of 1982 Rajendra Choudhary for the Appellant. G.N. Rao and T. Sridharan for the respondents. The Judgment of the Court was delivered by DUTT, J. These two appeals are directed against a common judgment of the Division Bench of the Madras High Court whereby, in exercise of its jurisdiction under Article 226 of the Constitution of India, the High Court quashed the orders of compulsory retirement of the two respondents, Mr. R. Rajiah and Mr K. Rajeswaran, who were then the District Munsifs. The respondent, R. Rajiah, originally joined service as a Sub Magistrate on 3.3.1965. On 6.1.1973, he was appointed a District Munsif in the Tamil Nadu State Judicial Service. While he was functioning as District Munsif, on 3.3.1980 the Registrar of the High Court, the appellant herein, sent a communication to the respondent Rajiah stating therein that he was being compulsorily retired from service in public interest with effect from 3.3.1980 The other respondent, K. Rajeswaran, was also originally appointed a Sub Magistrate in 1953. On 29.11. 1971, he was appointed a District Munsif having been selected by the Tamil Nadu Public Service Commission. On 22.2.1976, the High Court passed an order confirming him as District Munsif with effect from 1.1.1976. On 27.10.1976, the High Court passed an order compulsorily retiring him from service, which was communicated to him by the Registrar. Both the respondents being aggrieved by the orders of compulsory retirement, moved the High Court under Article 226 of the Constitution challenging the validity of the impugned ordes of compulsory retirement passed by the High Court in its administrative jurisdiction under Rule 56(d) of the Fundamental Rules. The principal contention of the respondents before the High Court was that the High Court had no power to oompulsorily retire 337 members of the Tamil Nadu State Judicial Service. Such an order could be passed only by the State Governor, who was the appointing authority. All that the High Court could do was to make a recommendation to the State Governor in that behalf. It was also contended on behalf of the respondents that there was no material on record which would justify the premature retirement of the respondents. The respondents also challenged the validity of the constitution of the Review Committees of the High Court that passed the impugned orders of compulsory retirement. Two learned Judges of the Division Bench delivered two separate judgments. One of the learned Judges of the Division Bench took the view that though it was within the jurisdiction of the High Court to take a decision whether a member of the State Judicial Service should be compulsorily retired or not in public interest, the formal order of compulsory retirement was to be passed by the Governor acting on the recommendation of the High Court. The other learned Judge, however, did not subscribe to the above view. According to him, it was the High Court which was competent to pass an order of compulsory retirement of a member of the State Judicial Service without any formal order by the Governor under rule 56(d) of the Fundamental Rules. Both the learned Judges, however, came to the conclusion that there was no material on record to justify the impugned orders of compulsory retirement of the two respondents. The learned Judges also held against the validity of the constitution of the Review Committee of the High Court that considered the question of passing the order of compulsory retirement of the respondent, Rajeswaran. According to the learned Judges, the irregular or illegal constitution of the Review Committee vitiated the impugned order of compulsory retirement. In the case of respondent, Rajiah, it was held that the manner in which the Review Committee considered the question of compulsory retirement of Rajiah was illegal. The writ petitions filed by the respondents were accordingly, allowed by the High Court and the impugned orders of compulsory retirement were quashed. Hence these two appeals. Mr. Datta, learned Additional Solicitor General appearing on behalf of the High Court, has strenuously urged that it is the High Court and the High Court alone that is competent to pass an order of compulsory retirement of a member of the subordinate judiciary under rule 56(d) of the Fundamental Rules. He has placed much reliance on the provision of Article 235 of the Constitution. It is submitted by him that unless it is held that the High Court is the only competent authority to pass an order of compulsory retirement, it would be denuding 338 the High Court of its control over subordinate courts as conferred on it by Article 235 of the Constitution. On the merits of the case, it is submitted by the learned Additional Solicitor General that the Division Bench of the High Court was not at all justified in considering the question as to the adequacy or otherwise of the materials on record in support of the impugned orders of compulsory retirement. Before considering the contention advanced on the basis of Article 235 of the Constitution, we may, at this stage, refer to the provision of rule 56(d) of the Fundamental Rules, the relevant portion of which is extracted below: "R. 56(d) Notwithstanding anything contained in this rule, the appropriate authority shall if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice, after he has attained the age of fifty years or after he has completed twentyfive years of qualifying service. Any Government servant who has attained the age of fifty years or who has completed twentyfive years of qualifying service may likewise retire from service by giving notice of not less than three months in writing to the appropriate authority. Explanation I: Appropriate authority means the authority which has the power to make subst antive appointments to the post or service from which the Government servant is required to retire or wants to retire. [Explanations II to V are omitted as they are not relevant for our purpose.] Rule 56(d) of the Fundamental Rules confers absolute right on the appropriate authority to retire a Government servant in the public interest. Under Explanation, I "appropriate authority" means the authority which has the power to make substantive appointment to the post or service from which the Government servant is required to retire or wants to retire. In view of Explanation I, it is manifestly clear that the absolute power to retire any Government servant has been conferred on the appropriate authority, that is, the authority which has the power to make substantive appointment to the post or service from 339 which the Government servant is required to retire. It is not disputed that the authority to make substantive appointment to the post of Munsif or District Munsif is the Governor. Therefore, without anything else, under rule 56(d) of the Fundamental Rules, the State Government or the Governor being the appointing authority, has the absolute power to retire a District Munsiff. It is not necessary to consider the provision of Article 235 of the Constitution and its impact on rule 56(d) of the Fundamental Rules as to the absolute right of the State Government to retire a member of the subordinate judicial service. Article 235 vests in the High Court the control over District Courts and Courts subordinate thereto. The vesting of such control is consistent with the ideal of preservation of the independence of the judiciary. The power of control comprises within it various matters in respect of subordinate judiciary including those relating to appointment, promotion and imposition of punishment, both major and minor. If any authority other than the High Court is conferred with the absolute right to take action against a member of the subordinate judicial service, such conferment of power will impinge upon the power of control that is vested in the High Court under Article 235 of the Constitution. Rule 56(d) of the Fundamental Rules under which a member of suboridnate judicial service can be compulsorily retired has to be read subject to and in harmony with the power of control vested in the High Court under Article 235 of the Constitution At this stage, it is necessary to consider the extent of the power of control of the High Court under Article 235. In the instant cases, it has been already noticed that the High Court had held the enquiry and made the impugned orders of compulsory retirement. According to one of the learned Judges of the Division Bench of the High Court, as the impugned orders were not signed by the Governor, but by the High Court, they were illegal and should be struck down. The contention of the learned Additional Solicitor General is that if the Governor is required to sign the impugned orders, it would take away the control of the High Court as conferred on it by Article 235. We are, however, unable to accept the contention. The test of control is not the passing of an order against a member of the suboridnate judicial service, but the decision to take such action. It may be that so far as the members of the subordinate judicial service are concerned, it is the Governor, who being the appointing authority, has to pass an order of compulsory retirement or 340 any order of punishment against such a member. But passing or signing of such orders by the Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution. An action against any Government servant consists of two parts. Under the first part, a decision will have to be made whether an action will be taken against the Government servant Under the second part, the decision will be carried out by a formal order. The power of control envisaged under Article 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service. Such a decision is arrived at by holding an enquiry by the High Court against the member concerned. After the High Court comes to the conclusion that some action either in the nature of compulsory retirement or by the imposition of a punishment, as the case may be, has to be taken against the member concerned, the High Court will make a recommendation in that regard to the Governor and the Governor will act in accordance with such recommendation of the High Court by passing an order in accordance with the decision of the High Court. The Governor cannot take any action against any member of a subordinate judicial service without, and contrary to, the recommendation of the High Court. In the State of West Bengal vs Nripendra Nath Bagchi, ; a question arose whether Article 311 takes away the control of the High Court vested in it under Article 235 of the Constitution. In that context, Hidayatullah, J. (as he then was) speaking for the Court observed as follows: "There is, therefore, nothing in article 311 which comples the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if article 235 vested such a power in it. In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by cl. (2) of article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone could have held the enquiry 341 in this case. To hold otherwise will be to reverse the policy which has moved determinedly in this direction. " Thus, it appears that this Court brought about a harmony between the power of the Governor and the power of control of the High Court. The question was again considered by this Court in State of Haryana vs Inder Prakash Anand, In that case A.N. Ray, C.J. Observed as follows: "The control vested in the High Court is that if the High Court is of opinion that a particular Judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the contemplation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate. It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. "The Government will act on the recommendation of the High Court. That is the broad basis of Article 235". " It is apparent from the observation extracted above that this Court also understood the power of control of the High Court as the power of taking a decision against a member of the subordinate judicial service. The High Court is the only authority that can take such a decision. The High Court will hold an enquiry and decide on the result of such enquiry whether any action will be taken against a member of the subordinate judicial service. If it comes to the conclusion that such an action is required to be taken, it will make a recommendation in that regard to the State Governor who will make an order in accordance with the recommendation of the High Court. There can be no doubt and, indeed, it is well established that compulsory retirement of members of the subordinate judicial service comes within the purview of the power of control of the High Court 342 under Article 235 of the Constitution. See State of Uttar Pradesh vs Batuk Deo Pati Tripathi, ; High Court of Punjab & Haryana vs State of Haryana, ; ; Shamsher Singh vs State of Punjab, ; ; State of Haryana vs Inder Prakash Anand (supra) and B. Misra vs Orissa High Court, ; The control of the High Court, as understood, will also be applicable in the case of compulsory retirement is that the High Court will, upon an enquiry, come to a conclusion whether a member of the subordinate judicial service should be retired prematurely or not. If the High Court comes to the conclusion that such a member should be prematurely retired, it will make a recommendation in that regard to the Governor inasmuch as the Governor is the appointing authority. The Governor will make a formal order of compulsory retirement in accordance with the recommendation of the High Court. In the instant cases, admittedly, the impugned orders of compulsory retirement have been passed by the High Court under rule 56(d) of the Fundamental Rules. It has been noticed that under rule 56(d) of the Fundamental Rules right of compulsory retirement has been conferred on the appropriate authority which, under Explanation I, means the appointing authority, that is, the Governor. While the High Court decided to compulsorily retire the respondents. it did not communicate the recommendations to the State Governor for passing formal orders of compulsory retirement. Instead, the High Court passed the orders of compulsory retirement itself. As Article 235 vests the power of control of subordinate judiciary in the High Court, the absolute right to compulsorily retire a Government servant conferred on the Governor by rule 56(d) of the Fundamental Rules must be subject to the power of control of the High Court, so far as the members of the subordinate judicial service are concerned. In other words, if the High Court considers that a member of the subordinate judicial service should be compulsorily retired, the High Court will make a recommendation in that regard to the Governor, who will make an order of compulsory retirement in accordance with the recommendation of the High Court. The Governor will only act on the basis of the recommendation and pass a formal order. But however formal it is, the compulsory retirement of the member concerned will take effect after the order is passed by the Governor. The High Court, in the present cases, sought to derive its power to compulsorily retire the respondents from rule 56(d) of the Fundamental Rules and in exercise of its power of control it decided to 343 compulsorily retire the respondents, but ignored the power of the Governor under rule 56(d) of the Fundamental Rules to make the order of compulsory retirement in accordance with the recommendation of the High Court. It may be that the power of the Governor under rule 56(d) of the Fundamental Rules is very formal in nature, for the Governor merely acts on the recommendation of the High Court by signing an order in that regard. But however formal it may be, yet the procedure has to be complied with. So long as there is no formal order by the Governor, the compulsory retirement, as directed by the High Court, could not take effect. We are unable to accept the contention of the learned Additional Solicitor General that to send the recommendation to the Governor for the purpose of making a formal order of compulsory retirement would be in derogation of the power of control of the High Court as vested in it under Article 235 of the Constitution. As has been discussed above, the power of control is a power to make the decision as to whether any action would be taken against a member of the subordinate judicial service and if so, what would be the nature of the action. In the case of compulsory retirement, when the High Court comes to a decision that the member should be compulsorily retired from service, its decision or recommendation has to be communicated to the Governor so that he may pass a formal order of compulsory retirement. In the instant cases, as there is no formal order by the Governor under rule 56(d) of the Fundamental Rules, the impugned orders of the High Court are ineffective. The view expressed by one of the learned Judges of the Division Bench that it was not the High Court but the Governor who had to pass formal orders of compulsory retirement, is correct. The contention made on behalf of the High Court that as rule 56(d) of the Fundamental Rules impinges upon the power of control of the High Court, as vested in it under Article 235 of the Constitution, it should be declared ultra vires in so far as it confers power on the Governor to compulsorily retire Government servants, who, in the instant cases, are members of the subordinate judicial service, is without any substance whatsoever and is rejected. We may now come to the merits of the case. It has been upheld by both the learned Judges of the Division Bench of the High Court that the impugned orders were not supported by any material. Further, it has been held that no material has been placed before the High Court to show that the impugned orders have been passed in public interest. This finding has not been challenged by the learned Additional Solicitor General appearing on behalf of the High Court. All that has been submitted by him is that the High Court was not 344 justified in considering the adequacy or otherwise of the materials in support of the orders of compulsory retirement. There can be no doubt that when the High Court takes the view that an order of compulsory retirement should be made against a member of the subordinate judicial service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant for the purpose of compulsory retirement. But, in the instant case, there is no question of adequacy or sufficiency of the materials in support of the impugned orders of compulsory retirement. According to the High Court, no material has been placed in justification of the impugned orders of compulsory retirement of the respondents. It is true that the High Court in its administrative jurisdiction has power to compulsorily retire a member of the judicial service in accordance with any rule framed in that regard, but in coming to the conclusion that a member of the subordinate judicial service should be compulsorily retired, such conclusion must be based on materials. If there be no material to justify the conclusion, in that case, it will be an arbitrary exercise of power by the High Court. Indeed, Article 235 of the Constitution does not contemplate the exercise by the High Court of the power of control over subordinate courts arbitrarily, but on the basis of some materials. As there is absence of any material to justify the impugned orders of compulsory retirement, those must be held to be illegal and invalid. In Rajiah 's case, a Review Committee consisting of three Judges was appointed by a resolution of the High Court. In the meeting of the Review Committee held on June 25, 1979 to consider the case of the respondent Rajiah, only two Judges of the High Court were present. The two Judges came to the conclusion that the respondent, Rajiah, should be compulsorily retired with effect from April 2, 1980. The Division Bench found that the third Judge had no notice of the meeting held on June 25, 1979, but he agreed with the view expressed by the two Judges with a slight modification that the respondent would retire with effect from March 3, 1980 under rule 56(d) of the Fundamental Rules. The Division Bench of the High Court took the view that as all the three Judges had not sat together and considered the question of compulsory retirement of respondent Rajiah, and that, further, the third Judge having also modified the decision of the two Judges, namely, that the respondent would be compulsorily retired with effect from March 3, 1980, the impugned order of compulsory retirement of the respondent, Rajiah, was vitiated. It is true that the members of the Review Committee should sit together and consider 345 the question of compulsory retirement, but simply because one of them did not participate in the meeting, and subsequently agreed with the view expressed by the other two Judges, it would not vitiate the decision of the Committee to compulsorily retire the respondent. The third Judge might be justified in correcting the date with effect from which the respondent would compulsorily retire, but that is a very minor issue and would not, in our opinion, make the decision invalid. In regard to the case of the other respondent, namely, K. Rajeswaran, the High Court took the view that the constitution of the Review Committee by the Chief Justice and not by the Full Court was illegal. We are unable to accept the view cf the High Court. We fail to understand why the Chief Justice cannot appoint a Review Committee or an Administrative Committee. But in one respect the High Court is, in our opinion, correct, namely, that the decision of the Review Committee should have been placed before a meeting of the Judges. In the case of the respondent, K. Rajeswaran, the decision and recommendation of the Review Committee was not placed before the Full Court meeting. Nor is there any material to show that the same was circulated to the Judges. In that sense, the recommendation of the Review Committee was not strictly legal. Another fact which has been pointed out by the High Court is that although the Review Committee was constituted with two Judges, another Judge also participated in the meeting of the Review Committee and, indeed, he recorded a very elaborate minute. The Division Bench has looked into the record and found that the learned Chief Justice had appointed only two Judges to constitute the Review Committee and observed that the participation of the third Judge was improper. It is, however, not known whether he participated in the meeting of the Review Committee under the direction of the Chief Justice. We had not the opportunity of looking into the record and, as such, we do not make any final pronouncement about the same. Another infirmity that has been pointed out by the Division Bench is of some substance. The respondent, K. Rajeswaran, was selected a District Munsif by the Public Service Commission on 29.11.1971. His probation was declared by the order of the High Court dated 15.7.1974 and on 1.1.1976 he was confirmed as a District Munsif. The Division Bench has rightly observed that it must be taken that when he was confirmed on 1.1.1976, there was nothing seriously wrong against him. In coming to a decision that the respondent should be compulsorily retired, the third Judge of the Review Committee 346 relied upon events that had happened right from 30.3.1954. It is curious that the past events that happened in 1954 were not considered to be of any significance in appointing the respondent to the post of District Munsif, but for the purpose of compulsory retirement those events were considered to be of importance. In Baldev Raj Chadha vs Union of India; , this Court observed as follows: "One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained. " The above decision has been relied upon by the Division Bench and that rightly. The decision to compulsory retire the respondent, in our opinion, is vitiated as the High Court had relied upon some adverse incidents against the respondent that took place in 1954, although the respondent was appointed to the post of District Munsif in 1976. In this regard, we may also refer to an observation by this Court in Brij Bihari Lal Agarwal vs High Court of M.P., ; "It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service up to the statutory age of superannuation. " For the reasons aforesaid, we are of the view that the Division Bench of the High Court was perfectly justified in quashing the impugned orders of compulsory retirement. 347 In the result, the appeals are dismissed. There will, however, be no order as to costs. SHARMA, J. I have gone through the Judgment just now delivered by Mr. Justice M.M. Dutt, and I agree that since there is no material on the records of the cases in support of the impugned orders of compulsory retirement of the two respondents Mr. R. Rajiah and Mr. K. Rajeswaran, they were rightly quashed by the High Court. The appeals are accordingly dismissed. I am not expressing any opinion on the other questions raised in these cases. R.S.S. Appeals dismissed.

The two respondents, R. Rajiah and R. Rajeswaran, who were members of the Tamil Nadu State Judicial Service, were functioning as District Munsifs when orders of their compulsory retirement from service were passed by the High Court of Madras in its administrative jurisdiction under Rule 56(d) of the Fundamental Rules. Both the respondents moved the High Court under Article 226 of the Constitution challenging the validity of the impugned orders on the grounds:(1) that the High Court had no power to pass an order of compulsory retirement of a member of the State Judicial Service as such an order could be passed only by the Appointing Authority i.e., the Governor; (2) that there was no material on record which could justify their premature retirement; and (3) that the Review Committees of the High Court that passed the impugned orders were not properly constituted. Two Judges of the Division Bench of the High Court delivered separate judgments and differed on the question of the power of the High Court to pass the impugned orders. One of the learned Judges took the view that though it was within the jurisdiction of the High Court to take a decision whether a member of the State Judicial service should be compulsorily retired or not, the formal order of compulsory retirement was to be passed by the Governor acting on the recommen 333 dation of the High Court. According to the other learned Judge, it was the High Court which was competent to pass an order of compulsory retirement of a member of the State Judicial Service without any formal order by the Governor under rule 56(d) of the Fundamental Rules. On merits, both the Judges came to the conclusion that there was no material on record to justify the impugned order. It was also held that in the case of Mr. Rajeswaran, the irregular or illegal constitution of the Review Committee vitiated the impugned order, while in the case of Mr. Rajiah, the manner in which the Reivew Committee considered the question of compulsory retirement was illegal. The High Court further pointed out that although Mr. Rajeswaran was confirmed as a District Munsif on 1.1.1976, in coming to a decision that Mr. Rajeswaran should be compulsorily retired, the third Judge of the Review Committee relied upon events that happened in 1954. It was contended on behalf of the appellant that the High Court alone has the power to pass an order of compulsory retirement of a member of the State judicial Service, and unless it is so held it would be in derogation of High Court 's control over subordinate courts as conferred on it by Article 235 of the Constitution. It was also urged that rule 56(d) of the Fundamental Rules should be declared ultra vires in so far as it confers power on the Governor to compulsorily retire members of the Subordinate judicial service. On merits, it was contended that the High Court was not at all justified in considering the question of adequacy or otherwise of the material on record in respect of the impugned orders of compulsory retirement. Dismissing the appeals, it was, ^ HELD: (Per M.M. Dutt, J.) (C.J.I. agreeing with him) (1) article 235 vests in the High Court control over Districts Courts and Courts subordinate thereto. The vesting of such control is consistent with the idea of preservation of the independence of the judiciary. If any authority other than the High Court is conferred with the absolute right to take action against a member of the subordinate judicial service, such conferment of power will impinge upon the power of control that is vested in the High Court under Article 235 of the Constitution. [339C D] (2) Rule 56(d) of the Fundamental Rules under which a member 334 of subordinate judicial service can be compulsorily retired has to be A read subject to and in harmony with the power of control vested in the High Court under Article 235 of the Constitutioin. [339E] (3) The test of control is not the passing of an order against a member of the subordinate judicial service, but the decision to take such action. Passing or signing of such orders by the Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution. [339G H; 340A B] (4) An action against any Government servant consists of two parts. Under the first part, a decision will have to be made whether action will he taken against the Government servant. Under the second part, the decision will be carried out by a formal order. The power of control envisaged under Article 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service. [340B C] (5) The control of the High Court, as understood, will be applicable in the case of compulsory retirement in that the High Court will, upon an enquiry, come to a conclusion whether a member of the subordinate judicial service should be retired prematurely or not. If the High Court comes to the conclusion that such a member should be prematurely retired, it will make a recommendation in that regard to the Governor inasmuch as the Governor is the appointing authority. The Governor will make a formal order or compulsory retirement in accordance with the recommendation of the High Court. The Governor cannot take any action against any member of a subordinate judicial service without, and contrary to, the recommendation of the High Court. [342B C] (6) It may be that the power of the Governor under rule 56(d) of the Fundamental Rules is very formal in nature, for the Governor merely acts on the recommendation of the High Court. In the instant cases, as there is no formal order by the Governor under rule 56(d), the impugned orders of the High Court are ineffective. [343D E] (7) In that view of the matter, the contention made on behalf of the High Court that rule 56(d) should be declared ultra vires in so far as it confers power on the Governor to compulsorily retire a member of. the subordinate judicial service is without any substance whatsoever. [343E F] (8) When the High Court takes the view that an order of com 335 pulsory retirement should be made against a member of the subordinate judicial service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant. But such a conclusion must be based on materials. If there be no material to justify the conclusion, it will be an arbitrary exercise of power by the High Court. As there is absence of any material to justify the impugned orders of compulsory retirement, these must be held to be illegal and invalid. [344C E] (9) It is true that the members of the Review Committee should sit together, but simply because one of them did not participate in the meeting, and subsequently agreed with the view expressed by the other two Judges, it would not vitiate the decision of the Committee. The third Judge might be justified in correcting the date with effect from which Mr. Rajiah would retire but that is a very minor issue and would not make the decision invalid. [344H; 345A B] (10) This Court failed to understand why the Chief Justice could not appoint a Review Committee. But the decision of the Review Committee should have been placed before a meeting of the Judges. In that sense, the recommendation of the Riview Committee was not strictly legal. [345C D] (11) The decision to compulsory retire Mr. Rajeswaran is vitiated as the Review Committee had relied upon some adverse incidents against him that took place in 1954, although the respondent was appointed to the post of District Munsif in 1976. [346E F] Per Sharma, J.: Since there is no material on record in support of the impugned orders of compulsory retirement of the two respondents they were rightly quashed by the High Court. No opinion is expressed on the other questions raised in these cases. [347B] State of West Bengal vs Nripendra Nath Bagchi, ; ; State of Haryana vs Inder Prakash Anand, ; State of Uttar Pradesh vs Batuk Deo Pati Tripathi, ; High Court of Punjab & Haryana vs State of Haryana, ; ; Shamsher Singh vs State of Punjab, ; B. Misra vs Orissa High Court, ; ; Baldev Raj Chadha vs Union of India, ; and Brij Bihari Lal Aggarwal vs High Court of M.P., ; , referred to. 336

ivil Appeal No. 562 of 1964. Appeal by special leave from the judgment and order dated ' February 7, 8, 1963, of the Bombay High Court (Nagpur Bench) at Nagpur in Appeal No. 115 of 1962. M. C. Setalvad, N. L. Belekar, R. D. Awade and A. G. Rat naparkhi, for the appellant. N. C. Chatterjee, V. section Sawhney, section section Khanduja, section K. Manchanda and Ganpat Rai, for respondent No. 1. 850 The Judgment of the Court was delivered by Mudholkar J. The question which arises for consideration in this appeal by special leave from the judgment of the Bombay High Court is whether respondent No. 1 Dr. D. P. Meshrarn was entitled to be a candidate for election to the Maharashtra Legislative Assembly from constituency No. 190 of Nagpur III, a constituency reserved for candidates from scheduled castes. The appellant and respondents 1 to 4 were candidates duly nominated for election to the Assembly from the aforesaid constituency. The poll was taken on February 27, 1962 and respondent No. 1 who had polled the highest number of votes was declared elected. The appellant thereupon preferred an election petition before the Election Commission, the main allegations in which were (a) that respondent No. 1 having embraced Buddhism on March 17, 1957 had ceased to be a member of a Scheduled Caste within the meaning of the Constitution (Scheduled Castes) Order, 1950 and was thus disentitled from being a candidate for the particular seat and (b) that respondent No. 1 was guilty of several corrupt practices. The Tribunal held that the "Corrupt practices alleged against respondent No. 1 were not established. It, however, came to the conclusion that respondent No. 1 had embraced Buddhism as alleged by the appellant and was, therefore, not eligible for being a candidate for election from the reserved constituency. Upon this ground the Tribunal set aside the election of respondent No. 1. It may be mentioned that the appellant had made a further prayer to the effect that he should be declared elected to the seat; but this prayer was not granted by the Tribunal on the ground that he was not the only other candidate for election and, therefore, it cannot be said how the votes which respondent No. 1 had secured would have been distributed among the remaining candidates. Aggrieved by the decision of the Tribunal respondent No. 1 preferred an appeal before the High Court of Bombay. The only question which was urged before the High Court was regarding the alleged conversion of respondent No. 1 to Buddhism. On that question the High Court reversed the finding of the Tribunal and held that the fact had not been established by evidence. The High Court, therefore, upheld the election of respondent No. 1. In support of his contention that respondent No. 1. was con verted to Buddhism on March 17, 1957 the appellant had ,adduced evidence of P.W. 9 Ramrattan Janorkar, P.W. 2 Akant 851 Mate, P.W. 5 Devaji Bhagat and P.W. 10 Wasudeo Dongre. Ramrattan who claims to be a Buddha has said that he presided over a meeting held at Lashkari Bagh, Nagpur, two or three days after the Holi festival of the year 1957 at which a mass conversion of persons belonging to Scheduled Castes to Buddhism took place. He named ten persons who, according to him, had been converted at that meeting, one of them being respondent No. 1. Amongst others named by him were P.W. 2 Akant Mate, P.W. 5 Devaji Bhagat and P.W. 10 Wasudeo Dongre. These three persons have corroborated the evidence of Ramrattan. We have been taken through the evidence of these witnesses and though there may be some contradictions on minor points on the whole their evidence is consistent and has a ring of truth in it. Moreover, the Tribunal which heard and saw the witnesses depose has believed in their veracity. The High Court has, however, not chosen to accept their evidence mainly on the ground that these witnesses belong to a party which is opposed to respondent No. 1 and his party. It is not disputed before us that these witnesses as well as respondent No. 1 were members of the Republican Party of India founded by the late Dr. Ambedkar and that some time after his death there was rift in the party as a result of which two groups were formed. The leader of one of these groups in Haridas Awade and that of the other is Khobargade. Respondent No. 1 belongs to the group headed by Khobargade while the appellant and the witnesses belong to the other group. We agree with the High Court that we should not lose sight of this fact. In our opinion, however, there are good grounds for accepting the evidence. In the first place there is the fact, which is admitted by respondent No. 1 himself, that a mass conversion of a very large number of persons belonging to the Scheduled Castes to Buddhism took place at Nagpur on October 14, 1956 at a meeting which was presided over by Dr. Ambedkar. What took place at that meeting is set out in exhibit 66 which gives 'an account of the proceedings. It says that about 5 lakhs of persons attended the meeting. At that meeting Dr. Ambedkar was present along with Rev. Mahesthavir Chandramani who is a Bhikku. The Bhikku made Dr. Ambedkar and Mrs. Ambedkar recite the three refuges (Thrisathi) and five precepts in Pali, after which both of them garlanded the idol of Lord Buddha which had been installed in the pandal where Dr. and Mrs. Ambedkar, the Bhikku and other prominent people were sitting. Dr. and Mrs. Ambed 165 11 852 kar then took 22 vows, which apparently he had himself prepared. Thereafter the mass ordination took place at which those who, wished to be converted recited the three refuges three times. This event had attracted attention throughout the country and was given wide ,publicity, by the press which was well represented at the meeting. Respondent No. 1 has admitted that he was a member, ,of Dr. Ambedkar 's party at that time and though he could not attend the conversion ceremony he had not. dissociated himself, from it. According to him the reason why he did not attend thee ceremony was that he was then, busy with,, making arrangements. at the, water works. for the supply of water to the lakhs of people, most of whom had come from the neighbouring villages to attend the ceremony. It is in the evidence of witnesses that at least lakhs of persons belonging to the Scheduled Castes were converted to Buddhism at that meeting and that the work of conversion went on even, after October 14, 1956 for quite some time. Another factor to be borne in mind is that prominent persons belonging to there Scheduled Castes were converted to Buddhism and it would be highly improbable, that respondent No. 1 who was a prominent member, of the. Scheduled Castes in Nagpur and a follower of Dr., Ambedkar would have remained aloof from the movement started by Dr. Ambedkar. The main object of Dr. Ambedkar was to secure for the members of the Scheduled Castes an honorable place in society and he felt that the various disabilities placed upon members of these castes were due to the fact that in Hindu religion to which they belonged, they had been accorded the lowest rank in society with the result that they had come to be regarded as untouchables. Undoubtedly, the caste system has virtually come to be regarded as an essential feature of Hindu society and, therefore, Dr. Ambedkar felt that the only way open to members belonging to the lowest group was to sever their connection completely from such a society. He found that Buddhism, the way or path of peace, not only, offered solace to the spirit but also social equality to all its members. Dr. Ambedkar was the unquestioned leader of the Scheduled Castes, at any rate in Maharashtra. It would, therefore, not be unreasonable to infer that those who had accepted his leadership and those who in addition held prominent places amongst people belonging to the Scheduled Castes should follow Dr. Ambedkar and renouncing Hinduism embrace like him, Buddhism. If this probability is borne in mind the evidence of the witnesses who have deposed to the fact of the actual conversion of respondent No. 1 to Buddhism would become more easily acceptable. 853 That, however, is not all. Corroboration of this evidence was sought to be supplied by the appellant from the conduct of respondent No. 1 subsequent to his conversion. For this purpose he has relied upon three matters: One is the signing of a declaration by respondent No. 1 along with some other persons to the effect that he had embraced Buddhism and that he, therefore, ceased to be any longer a member of the Scheduled Castes; the second is a wedding invitation subscribed to, amongst_others, by respondent No. 1 on which the picture of Lord Buddha is inscribed: and the third is the conversion of a Shiva temple situate near the appellant 's house to a Buddha temple. The declaration is exhibit 42 and is dated July 5, 1957. It is to the following effect: "To whomsoever it may concern: We, the following signatories, do hereby affirm that we embraced Buddha religion on 17 3 1957 and no longer since remain Harijans. " Then follow the names of ten persons, including P.W. 2 Akant Mate, P.W. 5 Devaji Bhagat and P.W. 10 Dongre. Each of them has signed therein against his name. The reason why this declaration came into existence is, according to the appellant, the following: Elections had taken place to the Nagpur Corporation and a meeting was held on July 5, 1957 for selection of six additional members. One of the Corporators, Mr. Udhoji, raised a point of order to the effect that no member of the Scheduled Castes having been elected to the Corporation a person belonging to the Scheduled Castes was required to be selected under the provisions of the Nagpur Municipal Corporation Act. Respondent No. 1 was one of the persons who had already been elected to the Corporation and was present at the meeting. He, however, did not contest the statement of Mr. Udhoji to the effect that no person belonging to the Scheduled Castes had been elected. Apparently, the point of order was disallowed and selection of six members, none of whom belonged to the Scheduled Castes, took place. Immediately thereafter the declaration referred to above was signed by ten persons, including respondent No. 1, who had all been elected as members of the Municipal Corporation at the Corporation election. This was filed along with the writ petition presented before the High Court in which the selection made at the meeting of July 5, was sought to be quashed on the ground 854 that no person belonging to a Scheduled Caste had been selected. Respondent No.1 admits that he did sign this declaration but in his written statement the reason given by him is that he did so under political pressure. In his evidence, however, he has given a different explanation. This is what he has said : "Akant Mate came there with some writing and told us that it was the directive of the Scheduled Castes Federation that members elected on its tickets should sign it. I do not know how he got that directive from the Federation, and from whom he got it. The writing was in English and I signed upon it. Akant Mate told me that I should sign on the document, he would go and get signatures of other Corporators and give it in the Corporation office. I could not myself read the English typewritten material. Akant Mate told me that the President of the meeting gave the ruling in the information by the Commissioner that I and Mate ' were members of the Scheduled Caste and that if this were not so, we would be able to get one more member and, therefore, I should sign on the document. My consent was not taken for filing the declaration in the High Court. I was not a party to the proceedings in the High Court, in connection with which the declaration was taken. " What he has said is, in substance, that he was duped by Akant Mate. There is thus a variation between his pleading and the proof adduced and in the circumstances we will be justified in rejecting his explanation. Once the explanation is rejected the declaration must be taken into account as a piece of corroboration of the fact that he had ceased to be a Hindu as he had been converted to Buddhism. Respondent No. 1 does not deny that the wedding invitation placed on record by the appellant bears his name as one of the hosts. The invitation pertains to the wedding of his daughters Lalita and Pushpa Lata and their respective bridegrooms were Sirish and Yashwant Rao. At the top of the invitation are the usual words "Subh Langna" (auspicious wedding). Then there is a picture of Lord Buddha followed by the inscription "May victory and prosperity by yours Obeisances to Buddha". It is well known that in Hindu weddings the invitations issued in an Indian language the picture of the Kuladaivata is generally printed 855 and the blessings of the Kuladaivata are invoked. Had respondent No. 1 considered himself to be a Hindu he would have followed the usual practice. No doubt, sophisticated people, though still belonging to Hindu religion, have discarded the practice of printing the picture of the family deity on wedding invitations and of invoking the blessings of the deity. Respondent No. 1 does not suggest that he belongs to that class. Indeed, if that were so, there would have been no occasion to print the picture of Lord Buddha and seek his blessings. In this invitation the picture of the Kuladaivata was substituted by that of Lord Buddha. This is more consistent with Respondent No. 1 having become a Buddhist than with his remaining a Hindu. According to respondent No. 1 he did not know till after the Sakshyagandh (engagement) was over that either of the bride grooms was a Buddhist. He says that a week before the marriages someone from the side of the bridegrooms met him and told him that the weddings had to be performed according to the Buddhist ritual and if he was not agreeable the engagements would be broken off. It was then that he first thought that the bridegrooms were Buddhists. However, he did not think it proper to break off the engagements. Now, if he were still a Hindu belonging to the Scheduled Castes it is unlikely that he would have reconciled himself with the idea of giving his daughters in marriage to non Hindus, more particularly when the bridegrooms ' side insisted on following the Buddhist ritual. He has, no doubt, tried to give an explanation for this curious conduct by saying that he treated Lord Buddha as the "11th (sic) incarnation" and that is why he had Lord Buddha 's picture printed on the wedding invitation. That explanation cannot be easily accepted. As regards the third circumstance there is the evidence of Budhaji Godbole, P.W. 11, and Kisan Shende, P.W. 14, in addition to that of the appellant. According to them respondent No. 1 converted the Shiva Temple in Gautamnagar into Buddha temple on June 6, 1959 and installed Lord Buddha 's image at a function over which he presided and at which Dr. Y. B. Ambedkar, President of Buddhist Society was present. Respondent No. 1 had admitted most of the facts, as pointed out by the High Court itself. The variation between the contentions of the parties is this. According to respondent No. 1 there was a Shiva Temple on a plot of land in Gaddigudam at Nagpur. While laying a new road in the year 1932 or so this plot was 856 taken over by the Nazul authorities and another plot was given for the Shiva Temple in exchange. But according to him, no Shiva Temple was at all constructed or Shiva Ling installed therein. This is obviously untrue. He admits that this plot " was managed by a Panch Committee" of which he was a member. For, without constructing a Shiva Temple on the plot there could have been nothing to manage by the Panch Committee. No doubt, he says that while he was Chairman of that Committee in the year 1959 or 1960 it was decided to construct a Shiva Temple thereon. But it is difficult to believe that the people of the locality would have waited for 28 years for taking the decision. He admits that a temple dedicated to Lord Buddha was constructed thereon as alleged by the appellant and his witnesses. It seems clear that the decision of the committee to which he refers related to the construction of this temple and not to a Shiva Temple which was already there. The evidence led on behalf of the appellant was to the effect that at the cere mony held on June 6, 1959 the idol of Lord Buddha was in stalled above the Shiva Linga, presumably meaning thereby that the Shiva Linga was overlaid with earth or bricks and on the top of it the image of Lord Buddha was installed. Referring to the evidence of Shende the High Court has observed: "The witness however does not say that he saw the removal of the old image of Lord Shiva or the Ling and the Pinda which were already there. On the other hand it is the case of Meshram that the Corporation had already given another plot to which the Shiva Mandir had long before been shifted and since this plot was idle, he gave it for the installation of Buddha 's idol. " The observation of the High Court underlined by us is apparently based on a misreading of the evidence of respondent No. 1 and also ignores his plea on the point in his written statement. It is not his case that two plots were allotted for a Shiva Temple one of which was vacant. His case, as already stated, was that the plot given in exchange for the old one was never utilised and not that two plots were given, one of which was utilised. Again, the High Court has failed to appreciate properly the evidence of Budhaji Godbole. What he has said is this "One house away from the house of respondent No. 1 is a plot of land on which then stood a Shiva Temple. This plot stood in the name of the respondent 857 No. 1. In that temple was Ling and Pind of Shiva. From 6 6 1959 this temple has now become Buddha Vihar. On that day, the Ling and Pind were put underground and at that place was installed idol of God Buddha The installation of the image of God Buddha was done by Bhaiyasaheb Ambedkar. It was the respondent No. 1 who was the principal man in converting the Shiva temple into a Buddha Vihar. " There is no suggestion in his cross examination that this witness had no personal knowledge of what he had deposed to. Since he has clearly spoken about the burial of the Shiva Linga and the installation of the image of Lord Buddha on top of it, he must be understood to mean that this was what happened in his presence and also in that of respondent No.1. Incidentally, it may be stated that this witness is also a convert to Buddhism. A reference may also be made to the evidence of the other witness Kisan Shende. The relevant portion of his deposition is as follows : "The respondent No. 1 was the President of the function. The idol of Buddha was installed by Bhaiyasaheb Ambedkar on an ota which covered the old Ling and Pind representing God Shiv This part of evidence of this witness has not been challenged in cross examination. There is no reason why this evidence ought not to be accepted, particularly when some of the essential facts deposed to by the witnesses have been admitted by respondent No. 1 himself. If we accept this evidence then the only conclusion which can emerge is that respondent No. 1 had ceased to be a Hindu. For, however great the admiration or regard a Hindu may have for Lord Buddha, he would shudder at the idea of desecrating a Shiva Linga in this manner or even of converting what was once a Shiva temple into a Buddhist temple. In our opinion, this would be the strongest circumstance corroborating the evidence of eye witnesses regarding the conversion of respondent No. 1 to Buddhism. It is contended on behalf of respondent No. 1 that there is a register of persons who had been converted to Buddhism and that the first respondent 's name does not appear there. It is true that R.W. 5 Waman Godbole speaks of some register but his evidence clearly shows that the register is not regularly maintained nor are the signatures of persons who had been converted 858 taken according to the dates of conversion. There is nothing to show that it was obligatory on every person who had been converted to sign in the register. Moreover, a signature in such a register would at best be only a piece of evidence of the fact of conversion and nothing more. Absence of a person 's signature in the register would not necessarily negative his being at all converted to Buddhism. Then it is said that only Bhikku is entitled to convert non Buddhists to Buddhism. There is abundant evidence on record that at the conversion ceremony held on October 14, 1956 Dr. Ambedkar had told the new Buddhists that any one who had become a Buddhist could admit others to the fold of Buddhism. Apart from that we have been shown no authority to the effect that a person cannot become a Buddhist unless he is converted to Buddhism by a Bhikku. Buddhism was in essence also a protest against orthodoxy and the power of the priesthood. It would, therefore, be strange to say that for a non Buddhist to become a Buddhist strict compliance with rituals is necessary. It is in evidence that at every conversion three vows had been repeated thrice. Five precepts had also to be repeated by those who offered them selves for conversion. This was exactly what was done by Dr. Ambedkar, his wife and others at the mass meeting on October 14, 1956 and it is not suggested that what they did was inadequate and so they cannot be deemed to have embraced Buddhism from that date. It is, therefore, futile to say that others who went through the same procedure had not become Buddhists merely because no Bhikku had officiated at the function. What cl. (3) of the Constitution (Scheduled Castes) Order, 1950 contemplates is that for a person to be treated as one belonging to a Scheduled Caste within the meaning of that Order he must be one who professes either Hindu or Sikh religion. The High Court, following its earlier decision in Karwade vs Shambhakar(1) has said that the meaning of the phrase "professes a religion" in the aforementioned provision is "to enter publicly into a religious state" and that for this purpose a mere declaration by person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient. The meanings of the word "profess" have been given thus in Webster 's New Word Dictionary : "to avow publicly; to make an open declaration of;. to declare one 's belief in : as, to profess (1) I.L.R. 859 Christ. To accept into a religious order. " The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems to us that the meaning "to declare one 's belief in : as to profess Christ" is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religious belief and consequently also upon a change,in religious belief. It would thus follow that a declaration of one 's belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious. The word "profess" in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu (or the Sikh) religion. Where, therefore, a person says, on the contrary, that he, has ceased to be a Hindu he cannot derive any benefit from that Order. Finally it is argued that the word Hindu is comprehensive enough to include a Buddhist and in this connection our attention is invited to Explanation 11 to cl. (2) of article 25 of the Constitution. Clause (1) of article 25 recognises, amongst other things, freedom to practise and propagate religion. Sub clause (b) of cl. (2) runs thus : "Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. " Explanation II ' reads thus : "In sub clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. " The definition of Hindu is expanded for the special purposes of sub cl. (b) of cl. (2) of article 25 and for no other. Paragraph 3 of the Constitution (Scheduled Castes) Order reads thus 860 .lm15 "Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste. " If it was intended that the word "Hindu" used in this paragraph should have a wide meaning similar to that in Explanation 11 just quoted the re would have been no need to make a mention of the Sikh religion. From the fact that a special mention is made of the Sikh religion it would follow that the word "Hindu" is used in the narrower sense of the orthodox Hindu religion which recognises castes and contains injunctions based on caste distinctions. For the foregoing reasons we are satisfied that respondent No. 1 had ceased to be a Hindu at the date of his nomination and that consequently he was ineligible to be a candidate for election from a constituency reserved for members of Scheduled Castes. In the circumstances the Tribunal was right in setting aside his election. Accordingly we allow the appeal, set aside the judgment of the High Court and restore that of the Tribunal. Costs throughout will be borne by respondent No. 1. Appeal allowed.

The appellant challenged the election of the 1st respondent to the, Legislative Assembly on the ground that the latter had embraced Buddhism and had ceased to be a member of a Scheduled caste within the meaning of the Constitution (Scheduled Castes) Order, 1950, and was thus disentitled from being a candidate for the particular seat. The Election Tribunal upheld the contention and set aside the election. On appeal, the High court held that the conversion of the 1st respondent to Buddhism had not been established by evidence and upheld his election. On appeal to the Supreme Court, HELD : (i) The word "profess" in the Order means "to declare one 's belief in". A declaration of one 's belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. It is unnecessary to enquire further as to whether the conversion to another religion was efficacious. [859 A D] (ii)No doubt the definition of "Hindu" contained in the Explanation to Article25 is expanded but that is only for the purposes of sub cl. (2) of cl. (2)of that Article and for no other. The mention of Sikh religion in Para 3of the Order clearly shows that the word "Hindu" in the order is used in the narrower sense of orthodox Hindu religion which recognises castes and contains injunctions based on caste distinctions. It is not comprehensive enough to include Buddhism. [859 H; 860 B C] Karwade vs Shambhakar, I.L.R. over ruled.

Appeal No. 1924 of 1970. Appeal by special leave from the judgment and order dated April 28, 1970 of the Allahabad High Court in Special Appeal 'No. 368 of 1970. section V. Gupte and Sobhagmal Jain, for the appellant. 0. P. Rana and R. Bana, for the respondents. 591 The Judgment of the Court was delivered by Hegde J. In this appeal by special leave the true ambit of item 1 in the Schedule to the (to be hereinafter referred to as the Act) read with section 3(1) of that Act comes up for consideration. The appellant is a manufacturer of certain medicines with the aid of substances like tincture, spirit etc. The tincture and spirit in their turn contain alcohol. The Superintendent of Excise called upon the appellant to pay duty under the Act on the medicinal preparation on the ground that they contain alcohol. The appellant resisted the demand on the ground that the medicines in question were not prepared by adding pure alcohol; the fact that the tincture which is a component of that preparation contains alcohol does not make it a preparation containing alcohol. That contention was rejected by the Superintendent of Excise as well as by the High Court in the Writ petition brought by the appellant. It is admitted that alcohol though it was not directly added is a component of the medicinal preparations in question. The alcohol has not undergone any chemical change into some other substance. It is present in a liquid form in those preparations. The question for decision is whether the preparation in question do not attract duty because alcohol was not directly added to the solution. The contention of the appellant is that unless alcohol is added into the preparation in its free condition, a medicinal preparation does not become dutiable. For deciding this question we may now read the relevant provisions of the Act. Section 3(1) of the Act says "There shall be levied duties of excise, at the rates specified in the Schedule, on all dutiable goods manufactured in India." "Dutiable goods" is defined in section 2(c) as meaning the medicinal and toilet preparations specified in the Schedule as being subject to the duties of excise levied under this Act: "Medicinal Preparation" is defined in section 2(g) in these words : " "medicinal preparation" includes all drugs which are a remedy or prescription prepared for internal or external use of human beings, or animals and all substances intended to be used for or in the treatment, mitigation or prevention of disease in human beings or animals. " 5 9 2 Item 1 of the Schedule, the only item with which we are concerned in this case reads as follows : Item No. Description of Dutiable goods Rate of Duty Medicinal preparation. Medicinal preparations, being patent or Ten proprietary medicines, containing alcohol Percent and which are not capable of being ab valouem consumed as ordinary alcoholic beverages. The only other provision which we need consider is section 4 of the Act. That section reads thus : Where alcohol, opium, Indian hemp or other narcotic drug or narcotic had been supplied to a manufacturer of any suitable goods for use as an ingredient of such goods by, or under the authority of, the collecting Government and a duty of excise on the goods so supplied had already been recovered by such Government under any law for the time being in force, the collecting Government shall, on an application being made to it in this behalf, grant in respect of the duty 'of excise leviable under this Act, a rebate to such manufacturer of the excess, if any, of the duty so recovered over the duty leviable under this Act. " It was conceded that the preparations with which we are con cerned in this case are medicinal preparations. They are proprietary medicines and that they are not capable of being consumed as ordinary alcohol beverages. The only question that has to be decided is whether those preparations contain alcohol. It is admitted that tincture is a component of that preparation and alcohol is a component of tincture. Therefore we fail to see how it can be urged that those preparations do not contain alcohol. In order to attract duty all that is required is that a medicinal preparation should contain alcohol. Alcohol may be a part of the preparation either because it is directly added to the solution or it came to be included in that medicinal preparation because of one of the components of that preparation contained alcohol. According to the plain language of the provision all that is required is that the preparation should contain alcohol. In interpreting a tax ing provision, the courts should not ordinarily concern themselves with the policy behind the provision or even with its impact. As observed by Rowlatt J. in Cape Brandy Syndicate vs Commissioners of Inland Revenue(1) in a taxing Act one has to look at (1) 593 what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. It was urged on behalf of the appellant that if we hold that even indirect introduction of alcohol into a medicinal preparation brings that preparation within the scope of section 3(1) of the Act, it would mean multipoint taxation. Coming to the medicinal preparations with which we are concerned in this case, it was urged that if the view taken by the High Court is correct then, first the tincture used became dutiable and thereafter the medicinal preparations in which tincture was used became dutiable. It was said that that could not be the intention of the parliament. We are unable to appreciate this contention. Multipoint taxation is not unknown to us. Our attention was invited to section 4 of the Act in support of the Contention that the legislature did not intend to levy multi point tax. Section 4 provides for rebate of duty on alcohol supplied to the manufacturer of dutiable goods for use as an ingredient of such goods by or under the authority of the collecting government and a duty of excise on goods so supplied bad already been recovered by such Government under any law for the time being in force. In our opinion this provision instead of supporting the appellant goes to show that multi point tax on medicinal preparations containing alcohol was within the contemplation of the leigslature; otherwise there was no purpose in incorporating section 4 into the Act. if section 3 did not impose any levy on medicinal preparations of which pure alcohol is not a component, there was no need for section I. There can be no question of any rebate if there was no levy at all. Every rebate presupposes an imposition of tax or duty. But the rebate under section 4 is confined only to those goods which directly come within the scope of section 4 and not to others. That was the will of Parliament. If Parliament desired to give rebate only in certain cases and not to others, it cannot be said that as regards the other medicinal preparations there can be no levy. In our judgment the language of the provision imposing the levy is plain and unambiguous. It imposes duty on all medicinal preparations containing alcohol. At the hearing our attention was invited to the decision of the Madras High Court in M/s. Pharm Products Ltd. Thanjavur & ors. vs Dist. Rev. Officer(1). The conclusion reached by that High Court accords with our conclusion. In the result this appeal fails and the same is dismissed with costs. V.P.S. Appeal dismissed.

The appellant is a manufacturer of certain medicines with the aid of substances like tincture, spirit, etc., which contain alcohol. On the question whether he was liable to pay duty under the Medicinal and Toilet Preparation (Excise Duties) Act, 1955, HELD : (1) The preparations are proprietary medicinal preparations and are not capable of being consumed as ordinary alcohol beverages, According to Item 1 of the Schedule to the Act, in order to attract duty, all that is required is that the medicinal preparation should contain alcohol. Alcohol may be a part of the preparation either because it is directly added to the solution or it came to be included in the medicinal preparation because one of its components contains alcohol. [592 E G] (2)It may be that a tincture is dutiable under the item, and, when the medicinal preparation in which it was used is also made dutiable it will involve multi point taxation. But section 4 of the Act shows that the multi point tax on medicinal preparations containing alcohol was within the contemplation of the Legislature. That section provides for rebate of duty on alcohol supplied to the manufacturer of dutiable goods, and, every rebate pressupposes imposition of tax or duty. [593 B F] (3) The rebate under section 4 is confined only to those goods which directly come within the scope of section 4 and not to others. From such a provision it cannot be said that as regard the other medicinal preparations, there can be no levy when the language of the provision imposing the levy is plain and unambiguous. [593 F G] M/,s . Pharm Products Ltd. Thanjavur vs District Revenue Officer , approved. Cape Brandy Syndicate vs Commissioners of Inland Revenue. , referred to.

Appeal No. 752 of 1957. Appeal from the judgment and decree dated January 8, 1954, of the Madras High Court in Second Appeal No. 312 of 1949. A. V. Viswanatha Sastri and P. V. B. Tatachari, for the appellant. 341 P.Somasundaram and T. Satyanarayana, for the respondents. March 16. The Judgment of the Court was delivered by WANCHOO, J. This appeal on a certificate granted by the Andhra Pradesh High Court raises the question of the interpretation of section 44 B(1) of the Madras, Hindu Religious Endowments Act No. II of 1927 (hereinafter called the Act). The point arises in this way. The property in dispute was originally granted in inam to the ancestors of the predecessors in interest of the plaintiffs respondents for the performance of parak service in the pagodas (temples) of village Panyam in Nandyal Taluk of the Kurnool District. The grantees of the land in this inam alienated a considerable portion of it and also ceased to perform the parak service. In consequence, the trustees of the temples at Panyam applied. to the Sub Collector under section 44 B (2) (a) (i) and (ii) of the Act for the resumption of the lands and their regrant to the temples on the ground that the holders of the inam had alienated the property and had failed to perform the service required of them. An inquiry was conducted into these allegations, and it was held by the Revenue Divisional Officer, Nandyal, that the inam had been granted on the condition of parak service being rendered and that there had been breach of the condition on failure to perform the service and also that the lands comprised in the inam had been alienated in a manner falling within section 44 B (2) (a) (i) of the Act. On these findings the resumption of the inam lands was ordered and the inam was re granted to the temples in Panyam village. The alienees took the matter in appeal to the Collector but failed. Thereupon they filed the suit out of which the present appeal has arisen; and their main contention was that. the revenue authorities had no jurisdiction to order the resumption of the inam under section 44 B. The suit was resisted by the trustees who were defendants to it and their case was that the, inam was a religious service inam in the sense of being emoluments for the performance of service and 342 alternatively that even if the grant was a personal inam, burdened with the performance of parak service, the grant was conditional on the performance of the service and as there was breach of this obligation, the resumption and re grant were justified under section 44 B. Certain preliminary facts are not in dispute now. It has been found by all the courts that the inam grant comprised both the warams. It has also been found that the grant to the inamdar was personal to him though burdened with parak service and not a service inam in the sense of the inam constituting emoluments of any office. On the finding that the inam was a personal inam burdened with service to the temple the trial court held that the case did not fall within section 44 B of the Act. On appeal the district court confirmed the decree of the trial court. In the High Court on second appeal the finding as to the inam being of both warams was not contested and it was conceded that it was a personal inam burdened with service. The only question that was agitated there was whether the case would fall within the four corners of section 44 B even if the inam which was granted in the present case was, a personal inam of both warams burdened with service to the temple. The High Court held against the trustees and dismissed the appeal. Thereupon the trustees who are the appellants before us applied for a certificate which was granted to them; and that is how the matter has come up before us. Section 44 B (1) is in these terms: "Any exchange, gift, sale or mortgage, and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the performance of a charity or service connected with a math or temple and made, confirmed or recognised by the British Government, shall be null and void. " The question for consideration is whether a personal inam burdened with service to a temple can be said to come within the meaning of the words "any inam granted for the performance of a service connected with a temple". It is urged that the words used in section 44 B (1) are of very wide import and any personal 343 grant of land howsoever large, if it is burdened with some service to a temple howsoever small, would be within the meaning of these words and would therefore come within the terms of s.44 B (1). The High Court has repelled this wide construction of the words used in section 44 B (1), and we think rightly. The distinction between a grant for an office to be remunerated by the use of land and a grant of land burdened with service is well known in Hindu law. The former is a case of a service grant and is resumable when the service is not performed. The latter is not a service grant as such but a grant in favour of a person though burdened with service and its resumption will depend upon whether the circumstances in which the grant was made establish a condition that it was resumable if the service was not performed: (see Shrimant Lakhamgouda Basavprabhu Sardesai vs Raosaheb Baswantrao alias Annasaheb Subedar and Others (1)). The question therefore is whether section 44 B covers only the first type of grant, (namely, a service grant) and not a personal grant burdened with service. Prior to the introduction of section 44 B in the Act, the enforcement of a condition of a grant in favour of charitable and religious institutions in Madras was by taking recourse to Board 's Standing Order 54. Under para. 1 of this Order, a duty was laid on the revenue officers to see that inams confirmed by the Inam Commissioner for the benefit of or for services to be rendered to any religious and charitable institution are not enjoyed without the terms of the grant being fulfilled. Under para. 2 thereof, religious and charitable inams were liable to be resumed on the ground that the whole or a portion of the land had been alienated or lost to the institution or service to which it once belonged or that the terms of the grant were not observed. Provision was also made in the Order for the authorities which would exercise the power to resume. Further provisions in that Order show that the intention normally was not to dispossess the inamdar even in the event of failure to perform the conditions of the grant but the land was subjected to (1) (1931) LXI M.L.J. 449. 344 full assessment and the assessment was made available to the institution in lieu of the service lost. In the case of personal inams burdened with service in particular what was usually resumed in the event of nonperformance of service with or without alienation was that portion of the grant which represented the value of the service burdened and not that which was personal and there was no injustice in this course for as we have already said a personal inam burdened with service was granted to an individual for himself though, he was required to perform certain services to the temple. Therefore, in case he failed to do so there might be resumption of such portion of the inam as would represent the burden of the service leaving the rest to him. It is in this background that we have to examine section 44 B (1) introduced in the Act in 1934 and see whether personal inams burdened with service are included within its ambit. It may be mentioned that on the introduction of section 44 B (1) in the Act. , B.S.O. 54 was amended and religious and charitable inams which were all governed till then by it were divided into two classes, namely (a) inams granted for the performance of a charity or service connected with a Hindu math or temple; and (b) inams not falling under class (a). Inams falling under class (a) were to be governed by the provisions of the Act while inams falling under class (b) were to be governed by B.S.O. 54 as heretofore. This amendment would also show that all religious inams, i.e., inams which had some connection howsoever slight with a temple or other religious institution were not to be governed by section 44 B and only those inams which were granted for the performance of a charity or service connected with a Hindu math or temple wore to be dealt with under section 44 B while others would still be governed by B.S.O. 54. We therefore agree with the High Court that this history affords a clue to the interpretation of section 44 B (1) and suggests that though the words used in section 44 B are open to a wide interpretation, the intention was to 345 bring within its purview only those inams which were granted directly to the temple and also those inams which were granted for the performance of a charity or service connected with a math or temple, i.e., service inams or such inams the whole income of which was for charity and not those inams which were personal inams though burdened with some service to a temple or math. As we have already said the land granted under a personal inam burdened with service may be very large and the service expected may be very slight, and it could not be the intention of the legislature when it enacted section 44 B (1) that large personal inams with slight service attached to them should be resumed and re granted to the temple under section 44 B (1) for failure to perform the service with which the grant was burdened. It would make no difference to the validity of this argument even if the service attached absorbed a larger portion of the inam leaving only a smaller portion to the grantee. This conclusion is in our opinion enforced if we look at el. (iii) of section 44 B (2)(a) which permits resumption of an inam on the ground that either the math or temple has ceased to exist or the service in question has in any way become impossible of performance. Now it could not be the intention of the legislature, where an inam was granted as a personal inam though burdened with some service to a temple or math, that such inam should be resumed simply because the math or temple has ceased to exist or for some other reason the service has become impossible of performance. The nature of a personal inam burdened with service is that it is meant for the individual to whom it is granted though the individual is required to perform some service to the temple also. The legislature could not have intended when it enacted section 44 B (2)(a)(iii) that even such an inam should be resumed when the math or temple ceases to exist. But this would be the result if the wide interpretation contended for by the appellants is accepted. In such a case obviously the personal portion of the grant has to be separated from the service portion 44 346 and if the service is not performed it is only the service portion that is liable to resumption. Further if we look at section 44 B (2)(f)(i), it provides that where an inam is resumed under section 44 B (1) it shall be re granted as an endowment to the temple or math concerned In the case of a personal inam burdened with service it will mean that if the service is not performed the whole inam would be liable to resumption and would be re granted to the temple, though the inam was granted to an individual and the service with which it was burdened might have been 'slight, the remaining income of the inam being intended as a personal grant to the individual. Therefore when section 44 B(2)(f)(i) provides for re grant of the resumed inam to the temple it presumes that the whole of the inam resumed was meant for service of the temple and there was no element of personal grant in it. It is on that basis that we can understand the re grant of the resumed inam to the temple, the idea behind the word "re grant" being that originally also it was granted for the temple though as a service inam. Similarly, section 44 B(2)(f)(ii) provides that where the math or temple has ceased to exist and an inam is resumed on that ground it shall be re granted as an endowment to the Board for appropriation to such religious, educational or charitable purposes not inconsistent with the objects of such math or temple, as the Board may direct. Here again it seems to us that the legislature could not have intended that a personal inam granted to an individual though burdened with service should be resumed when the temple has ceased to exist and the service could not be performed and should be taken over by the Board as an endowment for such purposes as the Board may direct, Such a provision would completely overlook the personal part of a personal inam burdened with service. Therefore, the view taken by the High Court that section 44 B(1), though on a wide interpretation it might also include personal inams burdened with service, is really confined to inams directly granted to the temple or service inams. for the purpose of a temple or math or inams the whole of the income of which 347 is meant for charity and does not include personal inams burdened with service, is correct. Such inams would continue to be dealt with under B.S.O. 54, class (b) as introduced by the amendment to that Order. In this view, there is no force in this appeal and it is hereby dismissed with costs. Appeal dismissed.

Certain lands belonging to the appellant were compulsorily acquired. The Collector made an award with respect to the amount of compensation, signed and filed it in his office as required by section 12(1) Land Acquisition Act on March 19, 1950. But no notice of the award, as required by section 12(2), was given to the appellant. The appellant came to know of the award on or about January 13, 1953, and on February 24, 1953, he filed an application under section 18 requiring that the matter be referred for the determination of the Court. The proviso to section 18 prescribes that in cases where a person was not present or represented at the time of the making of the award the application under section 18 shall be made within six weeks of the receipt of the notice from the Collector under section 12(2), or "within six months from the date of the award", whichever shall expire first. The appellant 's application was dismissed as time barred on the ground that it was made beyond six months of the date of the award. Held, that the application made by the appellant under section 18 of the Act was not beyond time. The award of the Collector was not a decision but an offer of compensation on behalf of the Government to the owner of the property and it was not effective until it was communicated to the owner. The making of the award did not consist merely in the physical act of writing the award or signing it or filing it in the office of the Collector; it also involved the communication of the award to the owner either actually or constructively. Consequently, the expression "the date of the award" in the proviso to section 18 meant the date when the award was communicated to the owner or is known by him either actually or constructively. The application in the present case was made within six months of the date when the appellants came to know of the award and was within the period prescribed. Ezra vs The Secretary of State, Cal. 36 and Ezra vs Secretary of State for India, Cal, 605, applied. Magdonald vs The Secretary of State for India in Council, (1905) 4 Ind. C. 914 and Hari Das Pal vs The Municipal Board, Lucknow, (1914) 22 Ind. C. 652, approved. 677 Jahangir Bemanji vs G. D. Gaikwad, A.I.R. 1954 Bom. 419 and State of Travancore Cochin vs Narayani Amma Ponnamma, A.I.R. 1958 Kerala 272, disapproved. O. A. O. A. M. Muthia Chettiar vs The Commissioner of Income tax, Madras, I.L.R. , Annamalai Chetti vs Col. T. G. The Cloeta, Mad. 189. and E. V. E. Swaminathan. The Alias Chidambaram Pillai vs Letchmanan Chettiar, (1930) I.L.R.Acqu , referred to.

Civil Appeal No. 1833 of 1970. Appeal by Special leave from the Judgment and Order dated the 17.4.1970 of the Mysore High Court in Civil Revision Petition No. 1255 of 1969. A.S. Nambiar, Ashok Kumar Sharma and M. Veerappa for the Appellant. R.B. Datar, Divender Singh, Ms. Madhu Moolchandani and Ms. Meenu Verma for the Respondent. The Judgment of the Court was delivered by VARADARAJAN, J. This appeal by special leave is directed against the Order dated 17.4.1970 of a learned single Judge of the erstwhile Mysore High Court (now Karnataka High Court) in CRP 1255 of 1969 which was filed against an Order dated 3.3.1969 of the Principal Civil Judge, Bangalore in Misc. Case 6 of 1969, filed by Kabidi Venku Sah who was the first respondent in the Civil Revision Petition and is the appellant in this Civil Appeal. The Principal Civil Judge allowed the Misc. Case which was filed under Order 21 Rule 58 of the Code of Civil Procedure for raising an attachment over the house property effected at the instance of Syed Abdul Hai who was the petitioner before the High Court in the Civil Revision Petition and is the first respondent in this Civil Appeal. The house property belonged originally to one Vittal Sah who was the husband of the second respondent Sharada Bai. Vittal Sah had executed a 114 simple mortgage over the property in favour of the appellant on 31.7.1948. The appellant obtained a decree on the mortgage on 4.9.1967 in O.S. 217 of 1966 on the file of the Principal Civil Judge and brought the property to sale in execution of that decree and purchased it himself on 24.7.1968 after obtaining the necessary leave of the Court to bid and set off. The sale was confirmed on 28.8.1968 and the appellant took delivery of the property on 28.11.1969 in Misc. Case 95 of 1968 as the court auction purchaser. The first respondent Syed Abdul Hai obtained a money decree against Vittal Sah on 30.3.1967 in O.S. 386 of 1964 on the foot of a promissory note executed in 1961 for a sum of Rs. 20,000. He obtained attachment before judgment over the same house property on 24.9.1964 on the same day on which filed that suit in the Court of the Principal Civil Judge, Bangalore. He filed E.P. 31 of 1968 for realising the money due under the decree by bringing the house property to sale pursuant to the attachment before judgment effected on 24.9.1964. Thereupon the appellant Venku Sah filed Misc. Case 6 of 1969 under Order 21 Rule 58 of the Code of Civil Procedure for getting the attachment raised, alleging that the second respondent Sharada Bai had no saleable interest in the property on the date of the attachment and that the first respondent 's simple money decree cannot prevail over his mortgage decree and the sale of the property obtained in his favour in execution of that decree. The first respondent Syed Abdul Hai opposed the claim petition, contending that the court proceedings referred to in the claim petition are collusive and fraudulent and that the delivery alleged by the appellant is only a paper delivery possession continued to be with the second respondent. The Principal Civil Judge found that the mortgage decree, execution sale and delivery of the property to the appellant cannot be questioned in the first respondent 's claim petition as being collusive and could be questioned only in a separate suit. He also found that there was no material on record to show that the second respondent continued to be in possession of the property after its delivery to the appellant pursuant to the court auction sale in his favour. He rejected the contention that the appellant was not entitled to file any claim petition under Order 21 Rule 58 of the Code of Civil Procedure for raising the attachment before judgment effected under Order 38 Rule 5 and held that there is nothing on 115 record to show that the appellant was aware of the attachment and therefore there was no delay in filing the claim petition and that the claim petition could be filed under Order 21 Rule 58 even in the case of attachment before judgment in view of the provisions of Order 38 of Rule 8 which says that when any claim is preferred to property which has been attached before judgment, such claim shall be adjudicated upon in the manner provided for the adjudication of claims to property attached in execution of a decree for payment of money. The Principal Civil Judge rejected the first respondent 's contention that the appellant had no interest in the equity of redemption even if the mortgage in his favour is true and that only the equity of redemption was attached on 24.9.1964 and held that what was attached the entire property and not the equity of redemption alone. In this view, he allowed the claim petition. Before the High Court it was contended for the first respondent that the appellant should show not only that he had an interest in the property attached on the date of the attachment but also possession thereof on that date before he could get the attachment before he could get the attachment before Judgment raised and that the property belonged to the second respondent 's husband and was in his possession on the date of the attachment and therefore the Principal Civil Judge could not have allowed the claim petition. The appellant refuted that contention by peculiarly contending that he, a simple mortgagee, was in constructive possession of the property through the mortgagor. The learned Judge of the High Court rightly rejected the contention that a simple mortgagee could be in possession of the mortgaged property constructively through the mortgagor and held that the appellant (claimant) should show that he had some interest in the property attached on 24.9.1964 and was in actual or constructive possession thereof. He observed that the Principal Civil Judge has not recorded any finding on the question of the appellant 's possession of the property on the date of the attachment and that he has thereby wrongly exercised jurisdiction and acted with material irregularity in allowing the claim petition. He found that the appellant had failed to prove that he had an interest in the property on the date of the attachment and was in possession of the property, either actual or constructive, on that date and held that he was therefore not entitled to have the attachment raised. The matter is quite simple but has unfortunately dragged on for nearly 15 years on account of a wrong and ill advised step taken 116 by the appellant. The learned Principal Civil Judge erred in observing that what was attached before judgment on 24.9.1964 is not the equity of redemption alone but the entire property. He has rightly held that in the claim petition the question of the mortgage of 1948, the mortgage decree, the court auction sale and delivery of possession of the property to the appellant pursuant to that sale cannot be contended to be collusive and observed that the first respondent could, if at all, challenge them only in a separate suit. That being so, undoubtedly the mortgage of 1948 in favour of the appellant was there and what remained with the mortgagor was only the equity of redemption until it was brought to an end by the sale in execution of the mortgage decree confirmed by the court on 28.8.1968. Therefore, there could be no doubt whatsoever that on 24.9.1964 when the property was attached before judgment long after the mortgage dated 31.7.1948 and two years before the suit on the mortgage was filed in 1966, the mortgagor had the equity of redemption and that what could have been attached in law on 24.9.1964 was the equity of redemption alone and not the entire interest in the property. There should have been no difficulty for the learned Judge of the High Court holding that the appellant could not have been in possession of the property, actual or constructive, for he was only a simple mortgagee who had nothing to do with possession until he got delivery of the property through the court as a decree holder court auction purchaser on 28.4.1968 as noticed by the learned Judge in his judgment. The appellant had no doubt an interest in the property as mortgagee, but he could not have been in possession of the property as he was only a simple mortgagee. The appellant was a secured creditor as he had a mortgage in his favour, and any attachment effected after the date of the mortgage and during its subsistence can be only subject to that mortgage. He had no interest in the equity of redemption on the date of the attachment and could not therefore have had any objection to that right of the mortgagor being attached by the first respondent. Therefore he was not a person who could in law file any claim petition under Order 21 Rule 58 objecting to the attachment of the equity of redemption. We may notice here what Order 21 Rule 58(1) says and it is this: "Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is 117 not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained. " The attaching creditor can bring the property to sale only subject to the mortgage as long as it is subsisting. That is to say he could bring only the mortgagor 's equity of redemption to sale if it had not already been extinguished by its sale in execution of any decree obtained on that mortgage. But if the equity of redemption has already been sold after the date of the attachment the attaching decree holder could proceed only against the balance, if any, of the sale price left after satisfying the mortgagee decree holder 's claim under the decree. The mortgagee 's right is thus not affected at all. Therefore it is we had observed carrier that the appellant had taken a wrong and all advised step in coming forward with the claim petition which has resulted in the matter dragging on for over 14 years from 15.1.1969. The appellant could not object to the attachment of the equity of redemption. The appeal fails and is dismissed, but under the circumstances of the case without costs. H.L.C. Appeal dismissed.

The Deputy Excise & Taxation Commissioner held an auction for granting the right to sell country Liquor for liquor vend. The respondents offered the highest bid which was provisionally accepted and they were declared the highest bidder under Rule 36(2) of the Punjab Liquor Licence Rules 1956. Subsequently, the Excise and Taxation Commissioner accepted the bid as required Rule 36(22) The respondents however failed to deposit the security amount as required under Rule 36(22A) and thereby contravened conditions No 15(1) of the conditions of auction and Rule 36(23). The Deputy Excise & Taxation Commissioner therefore served the respondents with a notice to show cause why the licence for country liquor vend, should not be re auction under Rule 36(23A) and the deficiency in price and all expenses of such re auction recovered from them under Section 60 of the Punjab Excise Act, 1914. The respondents represented that before the auction it was announced that no wine shop would be opened within a radius of three miles of the liquor vend but across the border the State Government of Punjab had sanctioned the establishment of 716 a liquor shop which was hardly 2 1/2 miles from the border and this would mean that there would be two country liquor shops one in the State of Haryana and the other in the State of Punjab and this was in breach of condition No. 13(iii) read with Rule 37(88) of the Rules. The Deputy Excise and Taxation Commissioner rejected the representation and directed the re sale of the licence for retail vend of the country liquor shop under Rule 36(23). The shop was re auctioned. At the time of re auction there were 52 bidders and the shop was re sold at the highest bid of Rs. 6.65 lakhs. The respondents were served with a notice of demand of Rs. 3.46 lakhs representing the loss on re sale. In their writ petitions to the High Court the respondents assailed the notice of demand. Following the decision in Kanhiya Lal Bhatia & Co. vs State of Haryana & Ors. the High Court held that the State had no authority to demand the amounts for failure of which the vends were put to re auction on the ground that the licence fee levied was in the nature of excise duty. In the Appeals to this Court, on the question whether the State Government was entitled to realise the difference which the respondents had agreed to pay under the terms of auction of a liquor vend and the amount realized on reauction of the vend, as also the defaulted instalments of the licence fee payable in respect of a liquor vend: Allowing the appeals, ^ HELD: 1. (i) There is a distinction between contracts which are executed in exercise of the executive powers and contracts which are statutory in nature. Under Art.299 (1), three conditions have to be satisfied before a binding contract by the Union or the State in exercise of the executive power comes into existence: (1) The contract must be expressed to be made by the President or the Governor, as the case may be. (2) It must be executed in writing. And (3) the execution thereof should be by such person and in such manner as the President or the Governor may direct or authorize. There can be doubt that a contract which has to be executed in accordance with article 299(1) is nullified and becomes void if the contract is not executed in conformity with the provisions of article 299(1) and there is no question of estoppel or ratification in such case. Nor can there by any implied contract between the Government and another person. [726C E] Smt. Nanhibai vs The Excise Commissioner, M.P. & Ors., AIR (1963) MP 352, referred to. Ram Ratan Gupta vs State of M.P., AIR (1974) MP 101. Ajodhya Prasad Shaw & Anr. vs State of Orissa & Ors., , M/S Shree Krishna Gyanoday Sugar Ltd. & Anr. vs State of Bihar & Anr., , approved. (ii) article 299(1) applies to a contract made in exercise of the executive power of the Union or the State. but not to a contract made in exercise of statutory power. article 299(1) has no application to a case where a particular statutory authority as distinguished from the Union or the States enters into a contract which is statutory in nature. Such a contract. even though it is for 717 securing the interests of the Union or the States. is not contract which has been entered into by or on behalf of the Union or the State in exercise of its executive powers. [726F G] K.P. Chowdhary vs State of M.P. ; , Mulamchand vs state of M.P. ; , State of M.P. vs Rattan Lal, , State of M.P., vs Firm Gobardhan Dass Kailash Nath, AIR , referred to. (iii) In an excise contract, the Collector acting as Deputy Excise & Taxation Commissioner conducting the auction under Rule 36(22) and the Excise Commissioner exercising the functions of the Financial Commissioner accepting the bid under Rule 36(22A) although they act for and on behalf of the State Government for raising public revenue, have the requisite authority to do so under the Act and the rules framed thereunder and therefore such a contract which comes into being acceptance of the bid, is a statutory contract falling outside the purview of Article 299(1) of the Constitution. In such a contract the requirements of Article 299(1) cannot be invoked. [727B E] A. Damodaran & Anr. vs State of Kerala & Ors. ; , referred to, In the instant case, there was unconditional acceptance of the highest bid of the respondents by the Deputy Excise & Taxation Commissioner at the time of the auction on March 11, 1969, and also by the Excise & Taxation Commissioner on March 21, 1969 as required under Rule 36(22A). The respondents could not unilaterally by their letter dated April 12, 1969 rescind the contract on the pretext that the State Government of Punjab had opened a new liquor shop across the State border. Even though this may have been in breach of the inter state agreement between the State Governments of Punjab and Haryana, the opening of such a liquor vend by the State Government of Punjab could not justify the respondents in not making the security deposit. This would not amount to a breach of the conditions on the part of the State Government of Haryana or furnish a ground absolving the respondents of their liability to pay the shortfall. [730E G ; 731A B] 2. Persons who offer their bids at an auction to vend country liquor with full knowledge of the terms and conditions attaching thereto, cannot be permitted to wriggle out of the contractual obligations arising out of the acceptance of their bids by a petition under Article 226 of Constitution. [731G] Har Shanker & Ors. vs The Deputy Excise & Taxation Commissioner & Ors. , State of Haryana & Ors vs Jage Ram & Ors. ; ,. State of Punjab vs M/s Dial Chand Gian Chand & Co. referred to 3. (i) In a commercial contract for the performance of which a definite time has been fixed and the contract specifies the mode of payment. i.e. specifies the dates on which the instalments of the licence fee are to be paid. time is of the essence of the contract. [732H] 718 (ii) Rule 36(23)(1) of the Rules specifically makes time of the essence. It therefore follows that payment of the instalments on the due dates was a condition pre requisite to the performance of the contract. [733A] In the instant case, the failure of the respondents to make payments relieved the State Government of their obligations. The Excise & Taxation Commissioner would have been justified if he had cancelled the licence under Rule 36(23) and put the liquor vend to reauction for the remaining period of the financial year. Instead of taking this drastic step of cancellation of the contract, the Deputy Excise & Taxation Commissioner served the respondents with the impugned notice of demand for payment of the first fortnightly instalment. The respondents were bound to pay the defaulted instalment on the due date. [733B C] 4. The decision of the High Court in Kanhiyalal Bhatia Court in State of Haryana vs Jage Ram & Ors,

vil Appeal Nos. 2 192/93 of 1972. From the Judgment and Decree dated 23.4.1971 of the Madras High Court in Writ Appeal Nos. 155 and 157 of 1970. G.L. Sanghi, K. Parasaran, section Krishnamurthy Iyer, K.K. Venugopal, D.N. Mishra and Ms. Lira Goswami for the Appel lants. V.C. Mahajan, Gobind Das, N.L. Kakar, C.V. Subba Rao, B.R. Aggarwala, T.C. Sharma, Mrs. Sushma Suri and Ms. Sushma Manchanda for the Respondents. The Judgment of the Court was delivered by VERMA, J. Both these appeals are against the common judgment of the Madras High Court (hereinafter referred to as 'the High Court ') by a certificate under Article 133(1) of the Constitution prior to its amendment. The appellants ' writ petitions were dismissed by a common judgment dated 18.12.1969 by a learned Single Judge of the High Court and thereafter, the writ appeals were dismissed by a Division Bench of the High Court on 23.4.1971. The grievance of the appellants before us is, as it was in the High Court, against the fixation of a uniform retention price in 1969 to be paid to all producers for the cement produced by them and acquired by the State Trading Corporation. In short, the appellants ' grievance is that the fixation of a uniform retention price for all producers in 1969 instead of three different retention prices for different categories of producers, as was done earlier, amounted to discrimination contravening Article 14 of the Constitution. The background in which the argument of discrimination has to be tested may now be stated. Cement has been a con trolled com 853 modity for a long time and its production, distribution and price were regulated by Cement Control Orders issued by the Central Government from time to time in exercise of the powers conferred under the Industries (Development & Regula tion) Act, 1951. The arrangement made in 1856 was that the entire quantity of cement produced by all producers was acquired by the State Trading Corporation which distributed it throughout the country at a uniform price on f.o.r. basis. The price payable by the State Trading Corporation to the producer was, however, the 'retention price ' or 'ex works ' or 'ex factory price ' fixed by the Government. In accordance with the recommendations of the First Tariff Commission in 1958, the Central Government fixed f.o.r. and ex factory prices for a period of three years from July 1958, under the Cement Control Order, 1958. Even though the consumer price was one uniform f.o.r. destination price, there were different retention prices for cement relating to the producers. In case of a new unit commencing production, the Government fixed suitable retention price for it on the basis of cost of production. Pursuant to representation by the cement industry for revision in the prices, the Second Tariff Commission was set up by the Government to examine the question. The Tariff Commission, after a comprehensive study, submitted its report on 26.8.1961. In the report, it was noticed that fixation of ex works price for individual cement producers had brought stagnation in the cement industry due to lack of competition and incentive amongst producers to reduce the cost of production, improve the operational efficiency and increase the output. It was observed that instead of reward ing efficiency, it had promoted a tendency to inflate costs which facilitated increase in the margin of profit to the producer. The Tariff Commission ultimately grouped the various units under three broad categories on the basis of return on the capital employed. These were: the lowest cost group, the high cost group, and those whose cost of produc tion was in between the other two groups. Accordingly, the Tariff Commission recommended different retention prices for the manufacturers of cement. The Government generally ac cepted the recommendations and passed the Cement Control Order, 1961, fixing three different retention prices for three different groups of manufacturers. The Central Govern ment from time to time permitted increase in the retention prices so fixed. The Central Government decided on discontrol of cement w.e.f. 1.1.1966, but the cement industry imposed a system of self regulation and set up an unofficial body known as "Cement Allocation and 854 Coordinating Organisation". The cement was to be distributed to consumers at uniform f.o.r. destination price all over India. This price included a freight component. A cement regulation account was also established to which a manufac turer would either contribute or draw from depending on the actual freight incurred. This system was not found workable and the Central Government decided to re impose control. The Cement Control Order, 1967 was passed under Section 18G and Section 25 of the Industries (Development & Regulation) Act, 1951, to be effective from 1.1.1968. Under this Order, the threetier retention price system was continued and the retention prices fixed for the three groups were specified in the Schedule as Rs.90.50, Rs.93.50 and Rs.96. Both the appellants fell under the category for which the retention price specified in the Schedule was Rs.96. Under this Cement Control Order, the system of uniform consumer price was preserved and freight equalisation was maintained by requir ing the manufacturer to either contribute or draw from the cement regulation account set up under clause 9 of the Order. The Cement Controller replaced the Cement Allocation and Co ordinating Organisation. Pursuant to the representation made by various manufac turers, the Central Government enquired into the increase in the cost of production since 1.1.1966. In consultation with the concerned authorities, it was estimated that the weight ed average increase in the cost of production since 1.1.1966 was Rs7 per tonne. The Central Government then issued the Cement Control (Amendment) Order, 1969 on 14.4.1969 effec tive from 16.4.1969 by which the Cement Control Order, 1967 was amended and in respect of all cement manufacturers, except M/s. Travancore Cement Limited, Kottayam, a uniform retention price of Rs. 100 per tonne was fixed. The appellants filed writ petitions in the Madras High Court challenging the fixation of a uniform retention price of Rs. 100 per tonne in this manner on the ground that it violated Articles 14 and 19(1)(g) of the Constitution. As earlier stated, the challenge was rejected by a Single Judge and thereafter, a Division Bench of the High Court, Hence, these appeals by a certificate granted by the High Court under the unamended Article 133(1) of the Constitution of India, The challenge before us in these appeals is based only on Article 14 of the Constitution. Shri K. Parasaran, learned counsel for the appellant in the Civil Appeal No. 2193 of 1972 (Chettinad Cement 855 Corporation Ltd. vs Union of India, contended that the impugned Order made in 1969 fixing a uniform retention price for all three categories of cement producers treats unequals as equals. He argued that the fixation of three different retention prices earlier was based on the Tariff Commis sion 's Report on the postulate that different .producers were differently situated with different cost of production and therefore, the fixation of different retention prices for them was reasonable. He next contended that increase in the cost of production being the real cause for re fixation of a higher price, the exercise purports to be under Clause 12 of the Cement Control Order, 1967, which does not permit fixation of the same price for all producers in spite of the difference in their cost of production, particularly when the Schedule to the order initially specified different prices for them. He also contended that on the finding of the High Court that the Chettinad Cement Corporation Ltd. (appellant in Civil Appeal No. 2193 of 1972) a newly born unit in infancy has suffered by this common treatment because there are several features which distinguish the Chettinad Cement Corporation Ltd. from the other units, fixation of the same price for this appellant is discrimina tory, particularly when a distinction was made in the case of M/s. Travancore Cement Ltd., Kottayam, for which a higher retention price was fixed. Shri Parasaran, therefore, con tended that atleast in the case of this appellant, discrimi nation is proved on the basis of the High Court 's finding of fact and a direction for re fixation of a reasonable price 'for this appellant would be justified. Shri G.L. Sanghi, learned counsel for the appellant in Civil Appeal No. 2192 of 1972, advanced a slightly modified argument. He too referred to Clause 12 of the Cement Control Order, 1967 to contend that fixation of one uniform retention price for all producers is not permissible thereunder. He argued that the increase of Rs.7 per tonne was to be made to the existing three tier retention prices, but an irrational basis was adopted in fixing the uniform price of Rs. 100 per tonne which results in an unequal increase to the three different retention prices then existing. Both the learned counsel contended that the result, therefore, is that whereas pro ducers for whom the retention price fixed earlier was Rs.90.50 per tonne have got an increase of more than Rs.7, the producers for whom the retention price was fixed at Rs.96 per tonne have been given an increase of less than Rs.7. It was, therefore, contended that fixation of the uniform retention price of Rs. 100 per tonne in case of all cement producers except M/s. Travancore Cement Ltd., Kotta yam, is discriminatory resulting in contravention of Article 14 of the Constitution. To recapitulate, the arrangement in vogue from 1956 was that 856 the cement produced by all the producers was acquired by the State Trading Corporation which distributed the commodity throughout the country at a uniform price on f.o.r. destina tion basis. The price payable by the S.T.C. to the producers was known as the 'retention price ' or 'ex works ' or 'ex factory price ' at a uniform rate. On a representation by the industry for revision of prices, the Government appointed the Second Tariff Commission to go into the question. The Tariff Commission, after a comprehensive review, submitted its report on 26.8.1961, and recommended the fixation of different retention prices for different groups of cement producers. The Government generally accepted the recommenda tions of the Tariff Commission and fixed three different retention prices which remained in vogue till fixation of a uniform retention price by the impugned Order in 1969. It may be mentioned that the fixation of three different prices instead of one uniform retention price in the inter vening period was challenged before the Rajasthan High Court on the ground that it was discriminatory, but that challenge was rejected in Jaipur Udyog Ltd. vs Union of India, AIR 1. Thereafter, the cement industry sought a further revi sion of the prices and the industry accepted in principle that there should be one uniform retention price or ex factory price in place of the three tier system, though the claim of the industry was that the uniform price be fixed at Rs.96 instead of Rs.93. The real controversy, therefore, between the cement industry and the Central Government was, whether the addition of Rs.7 per tonne for fixation of a uniform retention price should be made to the sum of Rs.96 or to Rs.93. In other words, if the uniform retention price were fixed at Rs. 104 per tonne instead of Rs. 100 per tonne, there was no grievance to anyone in the cement indus try against fixation of the uniform retention price. Even at the hearing before us, in reply to this specific query by us, learned counsel for the appellants did not dispute that no grievance would survive to the appellants if the uniform retention price was fixed at Rs. 104 per tonne instead of Rs. 100 per tonne. In substance, the grievance of both the appellants, therefore, is only to this extent and the argu ment of discrimination has been advanced for this purpose. In the counter affidavit filed on behalf of the Central Government, the manner in which the uniform retention price for the industry was fixed at Rs. 100 per tonne has been elaborately explained. A portion of the counter affidavit, relied on by the High Court also, is as under: 857 "The question of introduction of a uniform price for the entire industry had been under consideration from time to time since 1961. The opportunity of the request of the industry for an upward revision of their retention price due to increase in cost of production as a result of Governmen tal actions since 1.1.1966, was availed of to consider whether it was not opportune to introduce finally a uniform price for the entire industry as a Whole. In view of the observations of the Tariff Commission in 1961 that econo mies were possible with better management control and that the industry should make every effort to reduce its cost of production in future and the time elapsed since 196 1 it was felt that the additional price granted to the industry in 196 1, need not any longer be continued. The weighted aver age increase in the cost of production as a result of Gov ernmental actions since 1.1.1966, was determined in consul tation with the Chief Cost Accounts Officer as Rs.7 per tonne. The uniform price thus works out to Rs.90.50 per tome, i.e. Rs.69.50 per tonne prescribed in '1961 together with subsequent increases amounting in all to Rs.21. The weighted average retention price on the basis of three different retention prices amounted to Rs.93 per tonne. The uniform price for the industry was thus fixed at Rs. 100 i.e. Rs.93 per tonne, the weighted average of the three retention prices on the basis of actual production plus Rs.7 per tonne, as a result of the increase in the cost of pro duction due to Governmental actions since 1.1.1966. The fixation of a uniform retention price does not therefore involve any inequality or arbitrariness. It is denied that the Cement Control (Amendment) Order, 1969, has introduced any unfair and arbitrary inequality among the various pro ducers and would cause considerable loss to the petitioner or would amount to an unjust and arbitrary discrimination violative of Article 14 or 19(1)(g) of the Constitution of India. " The assertion in the counter affidavit of the Government is that the industry was itself in favour of a single uni form retention price which was taken into account by the Government in fixing the uniform price. This was not rebut ted by the appellants. The High Court has rightly relied on this fact. It is, therefore, clear that the fixation of Rs. 100 per tonne as the uniform retention price for the entire industry with the solitary exception of M/s. Travancore Cement Ltd., Kotta 858 yam, for which justification has been shown, was on a ra tional basis taking into account all relevant data and factors including the cement industry 's acceptance of the principle of a uniform retention price for the entire indus try, the only difference being in the price, actually fixed at Rs. 100 per tonne instead of Rs. 104 per tonne claimed by the cement industry. It is obvious that the fixation at Rs. 100 per tonne being shows to be made on a principle which has not been faulted, the actual fixation at Rs. 100 instead of Rs. 104 to be received by the industry is not within the domain of permissible judicial review if the principle of a uniform retention price for the entire industry cannot be faulted, The principles of price fixation permitting the fixation of a uniform price for the entire industry are no longer debatable after the recent decision of a Constitution Bench in M/s, Shri Sitaram Sugar Company Limited & Anr. vs Union of India & Ors. , and U.P. Stale Sugar Corporation Ltd. & Anr. vs Union of India & Ors. , JT even if the same were debatable when the controversy arose in the present case. In this decision, the Constitution Bench while affirming the earlier decisions of this Court in Anakapalle Co operative Agricultural & Industrial Society Ltd. etc. vs Union of India & Ors. , ; and The Panipat Cooperative Sugar Mills vs Union of India, [1973] 2 SCR 860 reiterated the settled principles. It was pointed out that what is best for the industry and in what manner the policy should be formulated and implemented, bearing in mind the object of supply and equitable distribution of the commodity at a fair price in the best interest of the gener al public, is a matter for decision exclusively within the province of the Central Government and such matters do not ordinarily attract the power of judicial review. It was also held that even if some persons are at a disadvantage and have suffered losses on account of the formulation and implementation of the Government policy, that is not by itself sufficient ground for interference with the Govern mental action. Rejection of the principle of fixation of price unitwise on actual cost basis of each unit was reiter ated and it was pointed out that such a policy promotes efficiency and provides an incentive to cut down the cost introducing an element of healthy competition among the units. Similarly, the criticism against the principle of weighted average adopted in fixation of price was rejected as baseless. It is obvious that even if there be no price control, the uneconomic units would be at a great disadvan tage and, therefore, the position should not be different for the purpose of price fixation. The "cost plus" price fixation perpetuates inefficiency in the industry and is against the long term interest of the country. It was held "that 859 price, . . , is to be arrived at by a process of cost ing with reference to a reasonably efficient and economic representative cross section of manufacturing units. " It is, therefore, clear that the principle of fixation of a uniform price for the industry is an accepted principle and this has to be done by fixing a uniform price on the basis of the cost of a reasonably efficient and economic representative cross section of manufacturing units and not with reference to the cost in relation to each unit. Obviously, such a practice is in larger public interest and also promotes efficiency in the industry providing an incentive to the uneconomic units to achieve efficiency and to reduce their cost. In the same decision, the permitted scope of judicial review was summarised as under: "The true position, therefore, is that any act of the repos itory of power, whether legislative or administrative or quasi judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it. " In the present case, we find that the fixation of the uniform retention price at Rs. 100 per tonne is based on the weighted average increase of Rs.7 in the cost of production and the weighted average retention price on the basis of three different retention prices determined at Rs.93 per tonne on the basis of expert opinion. Fixation of a uniform retention price being clearly permissible and the same having been determined at Rs. 100 per tonne on the basis of expert opinion, rounded on relevant factors, there is no scope for interference within the limits of permissible judicial review in the present case. A brief reference to Clause 12 of the Cement Control Order, 1967 may also be made. Clause 12 reads as under: "12. POWER TO VARY THE PRICES AND TO ALTER THE SCHEDULE . The Central Government may, having regard to any change in any of the factors relevant for the price of cement, such as an increase or decrease in the cost of production or distribution, by notification in the Official Gazette, vary the price fixed in this Order or alter the Schedule to this Order as appear to it to be necessary. " 860 We are unable to appreciate how Clause 12 in any manner restricts the Central Government 's power to fix a uniform retention price for all the units specified in the Schedule to the Order, even though different prices were specified in the Schedule as initially enacted. The Central Government 's power to refix the price can be exercised 'having regard to any change in any of the factors relevant for determination of price of cement '. The meaning of the expression 'having regard to ' is wellsettled. It indicates that in exercising the power, regard must be had also to the factors enumerated together with all factors relevant for exercise of that power. Once such factor specified in Clause 12 is "such as an increase or decrease in the cost of production or distri bution". Admittedly, the fixation of the uniform retention price at Rs. I00 per tonne was made on the industry 's demand for revision of the price as a result of increase in the cost of production, the only dispute between the industry and the Central Government being with regard to the extent of increase and not to the effect of increase or the mode of increase by fixation of a uniform price. It is, therefore, difficult to appreciate the support that the learned counsel for the appellants seek from Clause 12. The only surviving question for consideration is the argument in Civil Appeal No. 2 193 of 1972 for a differen tial treatment to the appellant, M/s. Chettinad Cement Corporation Limited, on the analogy of M/s. Travancore Cement Limited, Kottayam. In the counter affidavit of Shri G. Ramanathan, Under Secretary to the Government of India, the reason for treating Travancore Cement Limited different ly has been clearly stated. It has been stated that it is a sub standard unit with a capacity of 50000 tonnes per annum only without any scope for expansion while the standard capacity for a unit is two lakh tonnes per annum; so that this unit is not capable of expanding the capacity and it is on the whole an uneconomic unit deserving a special consid eration. No material has been produced by the appellant, M/s. Chettinad Cement Corporation Limited, to show that it is a similar sub standard unit without any capacity for expansion, so that it too must continue to be an uneconomic unit like M/s. Travancore Cement Limited, Kottayam deserving a similar treatment. The counter affidavit, therefore, shows a rational basis for classifying M/s. Travancore Cement Limited, Kottayam, differently as a sub standard and an uneconomic unit without any scope for improvement in com parison to other units. This argument also is untenable. As a result of the aforesaid discussion, we do not find merit in 861 any of the contentions advanced in support of these appeals to support the challenge on the basis of Article 14 of the Constitution to the fixation of a uniform retention price of Rs. 100 per tonne in 1969 by the impugned Order or to the practice of a uniform retention price being followed upto 1979. These appeals are accordingly dismissed. In the circum stances of the case, the parties shall bear their own costs. R.S.S. Appeals dismissed.

The Andhra Pradesh State Government appointed a Pay Revision Commissioner in 1977, for revision of pay scales in respect of its employees. The Commissioner was also directed to review the then existing retirement benefits and to make suitable recommendations regarding extension of retirement benefits. He submitted his report and recommended that the revised scales be made effective from 1.4.78. He also recom mended that the retirement age should be increased from 55 years to 58 years. Accepting the report, the State Government implemented the recommendations regarding pay scales effective from 1.4.78. The recommendation regarding increase in retirement age was implemented with effect from 29.10.1979. The State Government promulgated the Revised Pension Rules, 1980, which made a distinction between Government servants who were in service as on 29th October, 1979 (Part I) and those Government servants who retired/died in between 1.4.78 and 28.10.79. (Part II). By these Writ Petitions, the petitioners challenged the Revised Pension Rules, 1980 on the ground that the said Rules created two different categories of pensioners with different rates of pension which was completely arbitrary and in violation of this Court 's decision in D.S. Nakara & Ors. vs Union of India, ; The Respondent State contended that the increase In the age of superannuation could not be implemented retrospec tively as it would have led to a lot of difficulties, but to compensate those who retired after April 1, 1978 and before October 29, 1979 the Government gave them certain benefits. It was further contended that since the date of superannua tion was enhanced to 58 years on 29.10.1979 it was neces 6 sary to draw a line between those who retired earlier to that date and those who retired subsequent to 29.10.1979, which was not arbitrary and the rules guarantee 50% of pension to both categories irrespective of the date of retirement. Dismissing the writ petitions, HELD: 1. The claim of the petitioners is based on a complete misconception of the Rules. A perusal of the Rules clearly goes to show that Part I of the Rules was no doubt made applicable to all Government servants who would retire on or after 29.10.1979 while Part II was made applicable to such Government servants who were holding pensionable posts on 31st March, 1978 and who retired between 1st April, 1978 and 28th October, 1979 and this distinction was necessary in view of the fact that the age of superannuation for retire ment was increased from 55 years to 58 years w.e.f. 29th October, 1979. [9G H; 10A] 2. All the benefits have been granted to the pensioners like the petitioners who had retired between 1.4.1978 and 29.10.1979 in the amount of pension, retirement gratuity and family pension as granted to the Government servants falling under Part I So far as the amount of pension is concerned, the formula of completed six monthly periods of qualifying service was worked out as 30/60 of average emoluments which was equal to 50% of the pay. On account of the fact that the Government servants falling in Part I are retiring at the superannuation age of 58 years the above formula was calcu lated as 33/66 which was also 50% of the average emoluments. Similarly in the case of retirement gratuity and family pension no distinction has been made in the case of the two categories of pensioners. This clearly goes to show that neither there is any discrimination nor any disadvantage to the pensioners falling in the category of petitioners and the formula working out the amount of pension is based on a rational principle and it cannot be said that such differen tial rates have no reasonable nexus to the object sought to be achieved or the same are in any manner violative of Article 14 of the Constitution. [10A D] D.S. Nakara & Ors. vs Union of India, ; ; distinguished.

Civil Appeal No. 1654 of 1979. From the Judgment and order dated 28.3.1979 of the Allahabad High Court in Second Appeal No. 3064 of 1972. J.P. Goyal and S.K. Jain for the Appellant. S.N. Kacker and O.K. Garg for the Respondent. The Judgment of the Court was delivered by RANGANATHAN, J. The question which has come up for consideration in this appeal from judgment of the Allahabad High Court is whether the deposit of rent by a tenant under section 7 C of the Uttar 419 Pradesh (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter called the 'Act ') as such entitles him to resist successfully eviction under the provisions of the Act on the ground of default in payment of rent. The appellant, Ram Sewak, was a tenant of the respondent, Munna Lal in respect of a shop on a rent of Rs.25 per month. The rent upto 30. 11.66 had been paid by the tenant. The landlord, however. claimed that the rent for the period from 1. 12.66 till 28.2.1971, less an amount of Rs.275 which had been received by him by way of money order, was due from the appellant tenant. This remained unpaid despite notices of demand dated 22.3.71 and 12.4.1971, and a notice of termination of the tenancy dated 27.4.1971. On these allegations. The landlord instituted a suit for ejectment of the tenant on the ground of non payment of rent. He also claimed the recovery of arrears of rent. mesne profits and certain taxes, which were alleged to be payable by the tenant. This suit was decreed by the learned Munsif, Jhansi. A first appeal was unsuccessful insorfar as the decree related to the eviction of the petitioner was concerned but the claim for arrears of rent was rejected in part on the ground of limitation. A second appeal was also dismissed by the High Court and hence the present appeal. The defence of the tenant to the suit was that he had tendered the rent to the plaintiff landlord but the latter had refused to accept it. The rent was sent by money order but even then it was refused. It was submitted that the tenant had thereupon made an application on 31.7.1967 under section 7 C of the Act in the court of the learned Munsif, Jhansi, for permission to deposit the rent in the court. The Court issued a notice to the landlord, which was also duly served on him. On the date of hearing there was no appearance on behalf of the landlord. Thereupon the learned Munsif passed an order, on 11.11.1967, permitting the tenant to deposit the arrears of rent as well as future rent in court. It was claimed that the tenant had deposited arrears of rent amounting to Rs.200 for the period from 1. 12.1966 to 31.7.1967 in the court along with application and that he continued to deposit in court the rent thereafter from month to month. It was, therefore, submitted that there were no arrears of rent due from the tenant to the landlord and that, therefore, the suit for eviction was not maintainable. The learned Munsif and, on appeal, the learned Subordinate Judge found as a fact that the plaintiff had failed to prove that he had tendered the rent to the landlord or that the latter that the latter had refused to 420 accept it. This being so, they held, the statutory conditions requisite for a valid deposit under section 7C were not fulfilled. Neither the application made by the plaintiff under section 7C nor the order passed by the learned Munsif on 11.11.67 could therefore, help the plaintiff. In this view of the matter, both the courts held that the default in payment of rent, within the meaning of sec. 3(1)(a) of the Act, stood established and the plaintiff was, therefore, liable to eviction. Before us, as before the courts below, learned counsel for the tenant based his case solely on the order under the provisions of section 7C of the Act. That section reads as follows: "7 C Payment by Deposit of Rental) When a landlord refuses to accept any rent lawfully paid to him by a tenant in respect of any accommodation the tenant may in the prescribed manner deposit such rent and continue to deposit any subsequent rent which becomes due in respect of such accommodation unless the landlord in the mean time signifies by notice in writing to the tenant his willingness to accept. (2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent referred to in sub section (I) in respect of any accommodation, the tenant may similarly deposit the rent stating the circumstances under which such deposit is made and may until such doubt has been removed or such dispute has been settled by the decision of any competent court, or by the settlement between the parties, continue to deposit, in like manner, the rent that may subsequently become due in respect of such building. (3) The deposit referred to in sub section (1) or (2) shall be made in the Court of the Munsif having jurisdiction in the area where the accommodation is situate. (4) on any deposit being made under sub section (1) the Court shall cause a notice of the deposit to be served on the landlord, and the amount of deposit may be withdrawn by the landlord on application made by him to the Court in this behalf. (5) When a deposit has been made under sub section (2) the amount of the deposit shall be held by the Court for 421 the benefit of the person who may be entitled to it and the same shall be payable to such person. (6) In any case where a deposit has been made, as aforesaid, it shall be deemed that the rent has been duly paid by the tenant to the landlord. " Learned counsel submitted that, in the event of a landlord 's refusal to accept the rent, the tenant had no other alternative but to deposit the same in the court under the above special provision. It was open to the landlord to have appeared before the learned Munsif at the time of hearing of the application for deposit and put forward any pleas, which he might have had. The landlord not having done this, it was claimed that the order passed by the learned Munsif on 11.11.1967 provides a complete defence to the action under section 3(1)(a) of the Act against the tenant particularly in view of the language of sub section (6) of section 7C. It was contended that the statute should not be constured as requiring that a tenant should prove the fact of his having tendered the rent and the landlord having refused it twice over once while making a deposit under section 7C and, again, in proceedings under section 3(1)(a). If, despite a deposit under section 7 C, an action under section 3(1)(a) were to be permitted, it was urged, section 7 C would be rendered nugatory and otiose. Learned counsel also made a point that though the landlord in this case had knowledge that the rent was being deposited in court since August 1967, he chose to keep quiet for a period of four years before issuing a notice calling upon the appellant to pay the arrears of rent. Prima facie, the arguments of the appellant appear to have some force. However, after hearing learned counsel for the respondent and considering the facts of this case and the relevant statutory provisions, we have come to the conclusion that this appeal must fail both on technicalities as well as on equities. section 7C is no doubt a provision intended to protect the interests of the tenant. But there is the authority of this Court holding that the mere fact of a deposit under this Section, in itself cannot be an answer to an action section 3(1)(a). In Brahmanand vs Kaushalya Devi, ; , the relations between the landlord and tenant were highly strained. The tenant therefore deposited the moneys into court and pleaded this as a defence to an action section 3(1)(a). The High Court rejected this plea on the ground that there was nothing to show that the tenant had tendered the rent physically to the landlord and so the 422 deposit could not be treated as a valid deposit section 7C(I) so attract the deeming effect in section 7C(6). This Court held that the High Court had taken too narrow a view of the words 'paid to ' the landlord. Krishna Iyer J. Observed: "a liberal construction of the expression 'paid to him by a tenant. in section 7 C(l) is necessary. Physically offering payment when the relations between the parties are strained is to ask for trouble and be impractical. But harassing the landlord by straight way depositing the rent in court without fulfilment of the conditions required by section 7 C( l) is also unwarranted. Section 7 C(6) by using the expression 'where the deposit has been made as aforesaid ' takes us back to section 7 C( I). That is to say the deposit is permissible only when the condition in section 7 C(l) is complied with. If the landlord refuses to accept rent paid to him a deposit is permissible. But payment need not be by physical tender, person to person. It can be by money order, or through messenger or by sending a notice to the landlord asking him to nominate a bank into which the rents may be regularly paid to the credit of the landlord. If the landlord refuses under these circumstances, then a court deposit will be the remedy. " In the present case, on account of the bad blood between the parties a physical tender of the rent is ruled out. At the same time the Courts below have not considered whether the circumstances which drove the appellant into depositing the rent in court were such as eliminated the other possibilities of direct payment we have indicated. It is therefore fair to set aside the finding of the Courts below and remand the case to the lower appellate Court (which is the final court of fact under ordinary circumstances) to ascertain whether any of the alternatives we have indicated, or may otherwise be made out by the tenant as equivalent to payment of rent, is present in the case. if no such circumstances is made out by the tenant justifying deposit of rent in court, the decree for eviction will stand. Other wise, the petition for eviction will be dismissed. " It is important to note that this Court did not view the deposit section 7C as conclusive of the issue. On the other hand, it held that if no circumstance was made out by the tenant justifying the deposit in 423 court, the decree for eviction will stand. In other words, this Court the view that, irrespective of the fact of deposit section 7C, the tenant has to show, when a suit is under section 3(1)(a), that the existence of circumstances justifying a deposit under section 7C. In the present case, the Courts have been concurrently found that there was no valid tender of rent by the tenant or refusal thereof by the landlord. There is no ground therefore to interfere with the decision of the Courts below. A careful perusal of section 7C and the rules and forms made thereunder also supports the above conclusion. The application for a deposit under this section has to be made in the form prescribed in Appendix A to the rules framed under the Act. The appellant 's application to the court was filed in this form. Column 6 of the application form is filled in by the tenant may be extracted: (A) (B) 6. Whether deposit is made "the deposit is being under sub section (1)/(2) made under sub section(1) of Section 7 C. In case of of 7 C of the Act. Fact in Sub section(1) briefly brief is that the landlord state the circumstances of has reused to accept the refusal by the owner. in rent. It is being deposited case of sub section(2), under section 7 c of the UP mention circumstances of act 3 of 1947. " doubt or dispute about ownership. The rules framed under the Act also prescribed the form in which notice is to be served on the respondent when an application is made under section 7 C This form reads as follows: XXXX XX "To Whereas . . . has deposited Rs . . as rent for the period . .for the premises . Of which you have been mentioned as the land lord. 424 Notice is hereby given to you under sub section (4) of Section 7 C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, that the said amount will be paid to you on an application for withdrawal being presented to this Court. Given under my hand seal this day of . . Munsif. " Reading section 7 C, the rules framed thereunder and the above statutory forms together, it would appear that this provision envisages that where a tenant finds that the landlord refuses to accept the rent or there is some dispute regarding the ownership, he can, in order to protect his interests seek the permission of the Court to deposit the arrears of rent as well as future rent in the court instead of running after the landlord. Though the applicant is asked to indicate briefly the circumstances in which he wants to make a deposit, there is no procedure contemplated for an enquiry into those circumstances. The section or rules do not seem to contemplate the transmission of this application to the landlord, the fixing of a date of hearing on which both the tenant and the landlord could be heard or the passing of a considered order by the court after hearing both sides and being satisfied that there was in fact a tender of rent by the tenant and a refusal by the landlord to receive the rent or a dispute regarding the ownership of the property which rendered it difficult or impossible for the tenant to send the money to the landlord straight. The notice which is sent to the landlord merely sets out that money has been deposited in the court and that the landlord is at liberty to withdraw it if he so desires. All that the landlord can do on receipt of the notice is either to withdraw the moneys deposited or stop future deposits by expressing a willingness directly to the tenant to accept direct payment of rent thereafter. On the language of the statutory provisions therefore, it is not possible to say that a deposit section 7C is necessarily a valid one preceded by an enquiry or satisfaction of the court that the condition precedent set out in section 7C( I) is fulfilled. Counsel for the petitioner submits that in Fateh Chand vs Bal Saroop Goel, [ and other cases, the Allahabad High Court has held that a deposit section 7C is not a mere formality and that before directing or permitting a deposit the court has to go into the question whether there has been a tender and a refusal. In fact, the 425 High Court has gone further and held that the Court has to go into that question, at two stages: one, when an application is presented and before issuing notice to the landlord; and the other when the landlord appears before the court and disputes the validity of the procedure sought to be invoked by the tenant. Perhaps these requirements have been read into the section on grounds of equity and natural justice. Whatever that may be, we are constrained to say that such procedure does not appear to have been followed in this case. As we have already mentioned the application in the present case gave no details in the space against column 6. Instead of setting out the circumstances in which it was alleged that the landlord had refused to receive the rent, the application barely asserted that the landlord had refused to accept the rent. There is no information as to the nature of the notice served on the landlord but it must have been only in the form of Appendix already set out. Again, though the application of the appellant under section 7 C appears to have come up before the Munsif on 11.11.1967, and the order mentions that the landlord is "absent though served sufficiently", the order is only that the landlord may withdraw the amount deposited on proper application. It does not indicate any application of mind by the learned Munsif as to whether the conditions precedent for a valid deposit section 7C were satisfied. There is certainly no finding at that stage on this vital requirement. The grant of permission to deposit under section 7C, in the circumstances of the case, cannot therefore be treated as conclusive that a valid deposit had been made under that section. Sri Kackar took up the stand that even if section 7C is interpreted as providing an opportunity to both parties and even if a clear finding is recorded in these proceedings, after hearing both parties, that the preconditions of a valid deposit under that section are satisfied, that will not constitute res judicata or take away the court 's rights in an action section 3(1)(a), of being satisfied on the evidence before it to the same effect. He relied in this context on two decisions of the Allahabad High Court. It is sufficient to refer to extract some portions from the head note of one of them, viz. Hazi Abdul Karim vs Mohd. Ismail. [1978] U.P. Rent Cases 691) P. "A finding merely on a collateral fact of jurisdiction cannot operate as res judicata in later proceedings between the same parties. It has been stated in Halsbury 's Laws of England, Third Edition (Volume XV) paragraph 367 (at page 192). It is a fundamental rule that a judgment is not conclusive to anything but the point decided, or of any matter 426 which came collaterally in question or of any matter incidentally cognizable. The principle behind this rule seems to be that even though in the previous proceedings a decision on a collateral fact about jurisdiction, wrongly given may be binding on the parties for a limited purpose i.e., only so far as those proceedings are concerned, yet it would completely defeat the ends of justice, if such erroneous decision were allowed to become final and perpetuate itself. It would be conducive to the ends of justice that in later regular proceedings the parties should not be thwarded by an earlier wrong . finding and should be afforded full opportunity of demonstrating that the condition precedent to the exercise of jurisdiction were absent. It cannot, therefore, operate as res judicata and the parties must be left free to agitate the same question again in a subsequent suit for ejectment or other appropriate proceedings. The whole scheme of Section 7 C is inconsistent with any adjudication of the rights of the parties. Under this section the learned Munsif is not required to determine the rights and obligations of the landlord and the tenant in these proceedings. All that he has to do on deposit of rent under Section 7 C (1) is to issue a notice to the landlord informing him that such deposit has been made. The deposit, made under section 7 C is by itself a neutral act and it acquires its legal completion only when F. the rights of the parties are later determined in appropriate proceedings. The deposit is thus without prejudice to the rights of the parties which ought to be determined in the appropriate proceedings. X x x x x X . . the entire scheme of Section 7 C leads to the inescapable conclusion that it is merely a tentative or provisional forum provided for the purpose of checkmating any sinister attempt on the part of the landlord for letting it appear that no rent had been actually paid to him and thereby procuring the ejectment of a tenant. It is a legal fiction operating 427 for the benefit of tenant in order to destroy a substerfuge which may unjustly result in the eviction of the tenant. A deposit, therefore, per se does not decide the rights of the parties. Its significance and legal impost actually take shape according to the tenor and upshot of other subsequent proceedings in which such rights any be actually adjudicated. For the purposes of the present case, we need not go into this larger question. In view of our conclusion regarding the scope of section 7C and our finding that, here. there was no enquiry or finding recorded in the proceedings u section 7C which could at all operate as res judicata against the landlord in the suit section 3( l)(a). Learned counsel for the appellant strongly relied on two decisions of this court in support of his contention. The first was Kaloo and others vs GauriShanker, 51. Learned counsel relied on certain passages in paragraphs 13, 19 and 23. In our opinion this decision is not of much help as the court in that case was concerned with a clear case of refusal of rent by the landlord fully justifying the deposit under section 7 C. This is cleary from various passages in the judgment particularly in paragraphs 19 and 20. The other judgment relied upon is that of this court in Kameshwar Singh Srivastava vs IV Addl. District Judge, Lucknow and others; , This was a decision under a later Act of Uttar Pradesh, namely Act 13 of 1972. Section 3() of the said Act is a provision similar to section 7 C of the Act presently in question. In this case also it was found as a fact that there had been a tender of rent to the landlord, who did not accept the same and this was held to be a complete answer in proceedings for eviction. There can be no doubt that, by virtue of section 7 C(6) a deposit properly and justifiably made under section 7 C would be deemed to be a payment of rent to the landlord himself. Once there is a proof of a valid deposit, then there can be no eviction of the tenant under section 3(1)(a) since the section equates such a deposit to a payment to the landlord, thus negativing the existence of any arrears of rent or any wilful default. But, at the same time it is necessary for the courts to ensure that the tenants do not resort to the provisions of section 7 C merely to harass the landlord. The decision in Kameshwar Singh 's case emphasises this aspect in paragraph 7: "7. We should not be understood to have laid down that the tenant should deposit rent in court instead of paying the same to the landlord. Primarily, a tenant is under a legal obligation to pay rent to the landlord as and when due and 428 if he fails to pay the same on demand from the landlord and if he is in arrears for a period of more than four months he would be liable to ejectment. Where there is a bona fide dispute regarding the landlord 's right to receive rent on account of there being several claimants or if the landlord refuses to accept the rent without there being any justification for the same, the tenant would be entitled to take proceedings under section 30 of the Act and deposit the rent in court thereupon he would be deemed to have paid the rent to the landlord, consequently he would be relieved of his liability of eviction. It does not however follow that the tenant is entitled to disregard the landlord or ignore his demand for payment of rent to him. The provisions of the Act safeguard tenants interest but it must be kept in mind that the landlord 's right to receive rent and in the event of the tenant 's being in arrears of rent for a period of more than four months, his right to evict the tenant is preserved, if the tenant makes the deposit in court without there being any justification for the same or it he refuses to pay the rent even on the service of notice of demand by the landlord, he would be liable to eviction. However, the question whether the tenant is justified in depositing the rent in court and whether deeming provision of s; 30(6) would be available to him to relieve him from the liability of eviction would depend upon facts of each case. As noted earlier on the special facts of the instant case we have no doubt in our mind that the appellant had relieved himself from the liability of eviction and he was not in arrears of rent for a period of more than four months. " This decision also, incidentally, proceeds on the basis that, despite an order section 30, it is open to the Court in the proceedings for eviction, to consider whether the deposit was a valid one or not. In the light of the above observations also, were justified, having regard to the facts and circumstances of the present case, in ordering eviction. Learned counsel for the appellant submitted that such an interpretation as we have upheld would completely render section 7 C a dead letter. This is not so. Section 7 C, as we have pointed out earlier, is only intended as a protection to the tenant to tide over a particular genuine difficulty. It enables the tenant to deposit the rent from time to time in the court so that the arrears of rent do not accummulate and he is not constrained to pay large sums of money owing to the landlord on a future date. Secondly, it safeguards the landlord inasmuch as the 429 rent from month to month is being deposited in the court and the landlord is not prejudiced by a huge accummulation of rent which he may find it later on, difficult to recover. Thirdly, it also protects the tenant in this that, if ultimately he is able to show in the eviction proceedings that the deposit was made because of the refusal of the landlord to accept the rent, it provides a complete answer to the plea of eviction under section 3(1)(a). It cannot, therefore, be said that section 7 C loses all its meaning and becomes otiose if it is interpreted in the restrictive manner above discussed. This leaves only the equities of the matter to be considered. The contention of the learned counsel for the appellant that though the landlord was aware that the rent was being deposited in the court ever since August 1967, he waited for a period of four years before issuing a notice of demand for arrears of rent is seen to be without substance. Shri Kacker has pointed out that the appellant had filed a suit (No. 786 of 1968) claiming that he had paid Rs.275 towards rent by money order and claiming refund of the same. This suit was pending till April 197 1. On 19.4.197 1, the suit was dismissed. The Third Additional Munsif, Jhansi found that the sum of Rs.275 had been paid towards rent for the period ending 30.11.1966 and that the appellant was not entitled to the refund thereof. Shri Kacker rightly points out that since the appellant had raised a plea in this suit that the sum of Rs.275 had been paid by him towards the arrears of rent due after November 1966, the landlord was disabled from instituting proceedings for eviction until this issue was decided in the suit. In other words, the delay from August 1967, when the appellant started depositing the rent in court till 1971, when the proceedings for ejectment were started, was not due to any laches on the part of the respondent but was caused on account of the pendency of the litigation instituted by the tenant. Indeed it is rather unbelievable that, after having alleged in the application under 'section 7 C that the landlord had refused to accept the amount tendered and deposited the arrears of rent in court, the tenant would have sent a sum of Rs.275 by money order on 30.11.67, as alleged. In fact the findings in that suit, incidentally, also negative the tenant 's allegation that he had sent several money orders which the landlord had refused to receive. But this aspect need not detain us as all the three courts have concurrently found that in the present case the appellant had not been able to prove that there had been a tender of the rent by him and refusal thereof by the landlord. In the result we have come to the conclusion that both in law and in equity the appellant has no case and that the ejectment suit was 430 properly decreed by the courts below. The appeal, therefore, fails and is dismissed. We, however, make no order as to costs, since the arrears of rent are available to the landlord for being withdrawn from the court P.S.S. Appeal dismissed.

^ % Section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 permits eviction of the tenant who is. in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand. When a landlord refuses to accept any rent lawfully paid to him, section 7C(l) entitles the tenant to deposit such rent in the court. Section 7C(4) requires the court to cause a notice of the deposit to be served on the landlord. Section 7C(6) provides that where a deposit has been made as aforesaid, it shall be deemed that the rent has been duly paid. The appellant tenant was in arrears of rent of the demised shop from December, 1966 to February, 1971. The amount remained unpaid despite notices dated March 22, 1971 and April 12, 1971. In the suit for his ejectment under section 3(1)(a), the tenant took the defence that he had tendered the rent to the plaintiff landlord but the latter had refused to accept it, that even the rent sent by money order was refused, and thereupon he had made the deposit in the court under section 7C(1) of the Act, and there were no arrears of rent due from him. The trial court and the first appellate court held that statutory conditions requisite for a valid deposit were not fulfilled and, therefore, the default in payment of rent within the meaning of section 3(1)(a) stood established and the tenant was liable to eviction. The High Court dismissed the appeal. In the appeal before this Court in addition to the defence taken before the courts below, it was contended that though the landlord was aware that the rent was being deposited in the court ever since August, 1967 he waited for a period of four years before issuing a notice of demand for arrears for rent. 417 Dismissing the appeal, A ^ HELD: 1. Both in law and equity the appellant had no case. The ejectment suit was properly decreed by the Courts below. [429H; 430A] 2.1 The mere fact of a deposit under section 7C.of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 in itself cannot be an answer to an action under section 3(1)(a) for eviction of the tenant for default in payment of rent. Irrespective of the fact of such deposit the tenant has to show the existence of circumstances justifying the deposit. [42tG; 423A] Brahmanand vs Kaushalya Devi, ; , referred to. 2.2 Reading section 7C, the rules framed thereunder and the statutory forms together, it cannot be said that a deposit under section 7C is necessarily a valid one preceded by an enquiry or satisfaction of the Court that the condition precedent set out in section 7C(1) is fulfilled. Though the applicant is asked to indicate briefly the circumstances in which he wants to make a deposit, there is no procedure contemplated for an enquiry into those circumstances. The statutory provisions do not contemplate transmission of the application to the landlord, the fixing of a date of hearing on which both the tenant and the landlord could be heard or the passing of a considered order by the Court thereafter and being satisfied that there was in fact a tender of rent by the tenant and a refusal by the landlord to receive the rent or a dispute regarding the ownership of the property which rendered it difficult or impossible for the tenant to send money to the landlord straight. The notice which is sent to the landlord merely sets out that the landlord is at liberty to withdraw it if he so desires. [424C F] 2.3 In the instant case, the trial court, the first appellate court and the High Court have concurrently found that there was no valid tender of rent by the tenant or refusal thereof by the landlord. The application filed by the tenant under section 7C gave no details in the space against column 6 of the form prescribed in Appendix 'A ' to the Rules framed under the Act, setting out the circumstances in which it was alleged that the landlord had refused to receive the rent. The application barely asserted that the landlord had refused to accept the rent. 'Where was no information as to the nature of notice served on the landlord. [424H; 425B C] There was no enquiry of finding recorded in the proceedings 418 under section 7C which could at all operate as res judicata against the landlord in the suit under section 3(1)(a). Though the order of the Munsif under section 7C mentioned that the landlord was absent though served succinctly, the order was only that the landlord may withdraw the amount deposited on proper application. It does not indicate any application of mind by the Munsif as to whether the conditions precedent for a valid deposit under section 7C were satisfied. There was certainly no finding at that stage on this vital requirement. The grant of permission to deposit under section 7C, in the case cannot, therefore, be treated as conclusive of the fact that a valid deposit had been made under that section. [427B; 425D E] Haji Abdul Karim vs Mohd. Ismail, [1978] U.P. Rent Cases 691, referred to. Fateh Chand, vs Bal Saroop Goel, ; Kaloo and others vs Gauri Shankar, and Kameshwar Singh Srivastava vs IVAddl. District Judge, Lucknow and others, AIR 1987 S . 138 distinguished. The contention of the appellant that though the landlord was aware that the rent was being deposited in the court ever since August, 1967 he waited for a period of four years before issuing a notice of demand for arrears of rent was without substance. The delay was not due to any laches on the part of the respondent but was caused on account of the pendency of the litigation instituted by the tenant claiming refund of a sum of Rs.275 paid towards rent. [429C D]

Appeal No. 1082 of 1967. Appeal from the judgment and order dated March 7, 1967 of the Delhi High Court in Company Appeal No. 3 of 1967. A. N. Khanna and Harbans Singh, for the appellant. P. C. Khanna and Maharaj Krishan Chawla, for the respon dent. The Judgment of the Court was delivered by Shah, J. The appellants private limited Company is engaged in the manufacture of electric conduit pipes. The respon dent who is a director of the Company presented a petition in the High Court of Delhi under sections 433 and 439 of the , for an order for compulsory winding up of the Company. The respondent claimed that it was "just and equitable" within the meaning of section 443(f) of the , to make an order for compulsory winding up, because one of the three factories of the Company had been closed, that the accounts of the Company were not being shown to the respondent, that no meeting of the Company had been held, no balance sheet had been prepared and a letter of resignation purported to be signed 430 431 by the respondent had been forged. On July 18, 1966, Capoor, J., directed that notice of the petition be issued to the appellant Company. The order has not been formally drawn up, and it is not clear whether by that order it was intended to call upon the Company to show cause why the petition should not be admitted, or that by the order the petition was admitted and notice under r. 96 of the Companies (Court) Rules, 1959 was issued. The appellant Company filed its reply controverting the allegations made by the respondent. The Company also filed an application that the winding up petition filed by the respondent be taken off the file and be dismissed and that the petition in the meantime be not advertised. H. R. Khanna, J., held that the appropriate remedy of the respondent on the allegations of mismanagement of the affairs of the Company and oppression of the minority shareholders by the group of Anandi Lal was to file a petition under sections 397 and 398 of the . The learned Judge further held that the petition for winding up was instituted with a view "to unfairly prejudice the interests of the shareholders of the Company", respondent having set up a rival factory in the name of his son for manufacturing electric conduit pipes. The learned Judge directed that the petition be not advertised and be. dismissed. In appeal against the order passed by H. R. Khanna, J., the High Court of Delhi held that under the Companies (Court) Rules, 1959, once a petition is admitted to the file, the Court is bound forthwith to advertise the petition. The company challenges that order in this appeal. Rule 96 of "The Companies (Court) Rules, 1959" framed by this Court provides : "Upon the filing of the petition, it shall be posted before the Judge in Chambers for admission of the petition and fixing a date for the hearing thereof and for directions as to the advertisement to be published and the persons, if any, upon whom copies of the petition are to be served. The Judge may, if he thinks fit, direct notice to be given to the company before giving directions as to the advertisement of the petition. " Rule 24 which relates to advertisement of petitions provides "(1) Where any petition is required to be advertised, it shall, unless the Judge otherwise orders, or these, Rules otherwise provide, be advertised not less than fourteen days before the date fixed for hearing, in one issue of the Official Gazette of the State or the Union Territory concerned, and in one issue each of a daily newspaper in the English language and a daily newspaper in the regional language circulating in the State or the Union Territory concerned, as may be fixed by the Judge. 432 (2) Except in the case of a petition to wind up a company, the Judge may, if he thinks fit, dispense with any advertisement required by these Rules. " When a petition is filed before the High Court for winding up of .a company under the order of the Court, the High Court (i) may issue notice to the Company to show cause why the petition should not be admitted; (ii) may admit the petition and fix a date for hearing, and issue a notice to the Company before giving directions about advertisement of the petition; or (iii) may admit the petition, fix the date of hearing of the petition, and order that the petition be advertised and direct that the petition be served upon persons specified in the order. A petition for winding up cannot be placed for hearing before the Court, unless the petition is advertised that is clear from the terms of r. 24(2). But that is not to say that as soon as the petition is admitted, it must be advertised. In answer to a notice to show cause why a petition for winding up be not admitted, the Company may show cause and contend that the filing of the petition amounts to an abuse of the process of the Court. If the petition is admitted, it is still open to the Company to move the Court that in the interest of justice or to prevent abuse of the process of Court, the petition be not advertised. Such an application may be made where the Court has issued notice under the last clause of r. 96, and even when there is an unconditional admission of the petition for winding up. The power to entertain such an application of the Company is inherent in the Court, and r. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such direction or pass such orders as may necessary for the ends of justice to prevent abuse of the process of the Court", iterates that power. In in re. A. Company(1) it was held that if the petition is not presented in good faith and for the legitimate purpose of obtaining a winding up order, but for other purpose such as putting pressure on the Company, the Court will restrain the advertisement of the petition and stay all further proceedings upon it. We may state that the High Court of Punjab in Lord Krishna Sugar Mills Ltd. vs Smt. Abnash Kaur(2) was right in ,observing that the Court in an appropriate case has the power to .Suspend advertisement of a petition for winding up, pending disposal of an application for revoking the order of admission of the petition, though we may hasten to state that we cannot agree H.R. Khanna,, J., was apparently satisfied that the petition was not a, bona fide petition and the respondent in presenting (1) (2) A.L.R. 1961 Punjab 505. 433 the petition was acting with ulterior motive and his attempt to obtain an order for winding up was "unreasonable". Before the High Court directed that the petition for winding up be advertised,the High Court was bound to consider whether the view expressed by H. R. Khanna,, J., was right. For reasons already set out, in our judgment, the High Court erred in holding that a petition for winding up must be advertised even before the application filed by the Company for staying the proceeding for the ends of justice, or to prevent abuse of the process of the Court. The view taken by the High Court that the Court must, as soon as the petition is admitted, advertise the petition is contrary to the plain terms of r. 96. Such a view, if accepted, would make the Court an instrument, in possible cases, of harassment and even of blackmail, for once a petition is ad vertised, the business of the Company is bound to suffer serious loss and injury. The appeal is allowed. The High Court has disposed of the appeal on a ground of procedure and has not considered whether the view of H. R. Khanna, J., that in the exercise of the inherent power for the ends of justice and for prevention of the abuse of the process of Court, the petition should not be advertised, is correct. The case is therefore remanded with the direction that the High Court do deal with and dispose of the appeal according to law. There will be no order as to its costs in this Court. The costs in the High Court will be costs in this appeal. Y.P. Appeal allowed.

The property of a trust was sold in execution of a mortgage decree. The trustees sought to set aside the sale under 0. 21, r. 89 of the Code of Civil Procedure, They deposited five per cent of the purchase money for payment to the auction purchaser and claimed that the mortgagee had agreed to give them time for payment of the mortgage amount, and has agreed in the meantime to abandon the application for execution. The subordinate judge set aside the sale. In appeal the District Court reversed that order holding that since the trustees failed to comply with r. 89 of 0. 21 requiring the judgment debtor to deposit in court for payment to the decree holder the amount specified in the proclamation of sale for the recovery of which the sale was ordered, the executing court had no jurisdiction to set aside the sale. A single Judge of the High Court, in revision, set aside the order on the ground that the sale of the mortgaged property, which belonged to a public trust, without the sanction of the Charity Commissioner was prohibited by section 36 of the Bombay Public Trust Act and was on that account invalid. The ,High Court remanded the case to the District Court. In appeal to this Court, HELD:The order of the High Court should be set aside and that of the District Court restored. (i)Transactions of mortgage, exchange or gift or lease of any immovable property in clauses (a) and (b) of section 36 of the Bombay Public Trusts Act contemplated to be made by the Trustees are voluntary transactions and in the absence of any clear provision in the Act, the expression 'Sale ' in cl. (a) only means transfer of property by the trustees for a price and does not include a Court sale in execution of a decree. [457F G] A suit to enforce a mortgage or a proceeding to enforce a mortgage decree against property belonging to a public trust is not a suit or proceeding in which a question affecting public religious or charitable purpose is involved within the meaning of section 56B of the Act and therefore it is not obligatory upon the court to issue notice to the Charity Commissioner. [458C D] (ii) An order setting aside a Court sale in execution of a mortgage decree cannot be obtained under 0. 21 r. 89 of the Code of Civil Procedure by merely depositing five per cent of the purchase money for payment to the auction purchaser and persuading the decree holder to abandon the execution proceeding. [459G H] 456 (iii)A Single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of coordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court. Any reference to section 165 of the Evidence Act or the Oath of Office of a High Court judge is irrelevant and will not justify a judge in ignoring the rule relating to the binding nature of precedents. Jaisri Sahu vs Rajdewan Dubey, ; Lala Shri Bhagwan vs Shri Ram Chand, ; ; Pinjare Karimbhai vs Shukla Hariprasad, ; Haridas vs Ratansey, ; and State 'of Gujarat vs Gordhandas,

Appeal No. 2454 of 1966. Appeal from the Judgment and order dated February 19/22, 1965 of the Bombay High Court in Income tax Reference No. 2 of 1962. Sanat P. Mehta, and J.B. Dadachanji, for the appellant. Niren De, Solicitor General, B.R.L. lyengar, and R.N. Sachthey, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by certificate from the, judgment of the Bombay High Court dated the 22nd February, 1965 in Income tax Reference No. 2 of 1962. In the year 1951 the assessee Maneklal Ujamshi (hereinafter referred to as the assessee) made a gift of 1,184 ordinary and 155 preference shares in Changdeo Sugar Mills Ltd. to his wife Bai Laxmibai. The total value of these transferred shares on the date of the transfer was Rs. 68,730/ . Subsequent to the transfer the company converted the preference shares into ordinary shares giving the shareholders 8 ordinary shares for each preference share with the result that on December 31, 1954, Bai Laxmibai held in all 2,424 ordinary shares of the mills. Out, of these 2,424 shares. Bai Laxmibai sold 2,400 shares on August 1. 1956, for the sum of Rs. 1,54,800/ resulting in a capital gain of Rs. 70,860/ as computed under section 12B of the Income tax Act. The whole amount realised by the sale of the shares was deposited ' by Bai Laxmibai with M/s. A.H. BhivandiwaIla & Co., in which Maneklal as well as his son, Sevantilal, happened to be partners. The amount deposited by Bai Laxmibai fetched a yearly interest of Rs. 9,288/ . In the assessment of Maneklal for the assessment year 1957 58 the Income Tax Officer included the amount of Rs. 70,860/ which was the profit made by Bai Laxmibai on the 362 sale of the shares, as income of Maneklal under section 16(3)(a)(iii) of the Indian Income Tax Act. Similarly, in the assessment of Maneklal for the assessment years 1958 59 and 1959 60, the Income Tax Officer included in each year the amount of Rs. 9,288 which was the interest earned by Bai Laxmibai on the deposit of the sale proceeds with M/s. Bhivandiwalla and Co. as the income of Maneklal under section 16(3)(a)(iii). According to the Income Tax Officer the gain which had resulted from the sale of the shares was the income of the wife of the assessee which arose directly or indirectly from the assets transferred by the assessee to his wife otherwise than for adequate consideration and therefore was required to be included in the computation of the total income of Maneklal. The Income Tax Officer also took the view that the amount of interest which Bai Laxmibai had received from the sale proceeds deposited by her with M/s. Bhivandiwalla & Co. was also income of the wife of Maneklal which arose directly or indirectly from the assets transferred by Maneklal to her. Accordingly, in the assessment order for the first year, the Income Tax Officer included the amount of Rs. 70,860/ and in the assessment orders for the next two years, he included the amount of Rs. 9,288/ in the total taxable income of Maneklal. Appeals against all these three assessment orders were filed before the Appellate Assistant Commissioner. In the appeal against the first assessment order for the assessment year 1957 58 the Appellate Assistant Commissioner agreed with the view taken by the Income Tax Officer and dismissed the appeal. In the other two appeals, he partly allowed the appeals taking the view that only that part of the interest which was attributable to the monetary value of the shares covered by the shares at the time of the gift was liable to be included in the total income of Maneklal in accordance with the provisions o.f section 16(3)(a)(iii) and the balance could not be included under the said provision. Since the monetary value of the shares gifted to Bai Laxmibai at the time when the gift was made was only Rs. 69,730/ , the interest attributable to it worked out at Rs. 4,l 38/ . Out of the total interest of Rs. 9,288/ which was received by Bai Laxmibai in each of those years, he directed that only an amount of Rs. 4,183/ should be included in the total income of Maneklal in each of those two years and the balance of Rs. 5,105/ should be deleted. Against the orders of the Appellate Assistant Commissioner on these appeals the assessee appealed to the Appellate Tribunal. The Department, on the other hand, appealed against the orders of the Appellate Assistant Commissioner for the years 1958 59 and 1959 60 insofar as they allowed exemption in respect of Rs. 4,183/ out of the total amount of Rs. 9,288/ for each year. The Appellate Tribunal dismissed the appeal of the assessee with regard to the assessment year 1957 58. For the assessment years 363 1958 59 and/959 60, the Appellate Tribunal allowed the appeals of the Department and dismissed the appeal of the assessee for the assessment. year 1959 60. According to these decisions of the Appellate Tribunal the result was that for the assessment year 1957 58 the order of the Income Tax Officer that the amount of Rs, 70,860/ which was the profit or gain on the sale of the shares by Bai Laxmibai was liable to be included in the total income of Maneklal was upheld and for the later two, years the entire amount of interest viz., Rs. 9,288/ was held to be liable to be included in the total income of Maneklal in each of those two years. Thereafter, at the instance of the assessee, the Appellate Tribunal stated a case to the High Court on the following questions of law: "1. Whether in computing the total income of Maneklal for the assessment year 1957 58, the sum of Rs. 70,860/ has been properly included therein in accordance with the provisions of section 16(3)(a)(iii) of the Income tax Act, 1922 ? 2. Whether in computing the total income of Maneklal for the assessment year 1958 59 the sum of Rs. 5,104/ has been properly included therein in accordance with provisions of section 16(3)(a)(iii) of the Income tax Act, 1922? 3. Whether in computing the total income of Maneklal for the assessment year 1959 60, the sum of Rs. 4,183/ has been properly included therein in accordance with the provisions of section 16(3)(a)(iii) of the Income tax Act, 1922 ? 4. Whether in computing the total income of Maneklal for the assessment year 1959 60, the sum of Rs. 5,105/ has been properly included therein in accordance with the provisions of section 16(3)(a)(iii) of the Income tax Act,1922 ?" By its judgment dated February 19, 1965 the High Court answered the first question in the affirmative and against the assessee. It answered questions Nos. 2 & 4 in favour of the assessee and against the Department. As regards question No. 3, the High Court answered it in the affirmative and in favour of the Department. The reason was that Counsel for the assessee did not press it or challenge the correctness of the view taken by the Appellate Tribunal and accepted as correct the conclusion of the Tribunal with regard to the point involved in that question. Section 16(3)(a)(iii) of the Income Tax Act, 1922 provides as follows: 364 "in computing the total income of any individual for the purpose of assessment, there shall be included : (a) so much of the income of a wife of such individual as arises directly or indirectly . . (iii) from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart". Section 2(6C) of the Income tax Act, 1922 states: "Income ' includes . . (vi) 'any capital gain chargeable under section 12B; Section 12B of the Income Tax Act enacts: (1) The tax shah be payable by an assesee under the head 'capital gains ' in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset effected after the 31st day of March, 1956, and such profits and gains shall be deemed to be income of the previous year in which the sale. exchange, relinquishment or transfer took place;. " With regard to the first question Mr. Mehta put forward the argument that what comes within the ambit of section 16(3)(a)(iii) is the income from the transferred assets, which is different from the profit or gain arising from the sale of the transferred assets, or in other words, "the capital gains" from the transferred assets. It was argued in the first place that what comes within the ambit of section 16 (3) (a) (iii) was 'the income from the assets ' i.e., the income which the asset produces while it continues to remain in the hands of the assessee and does not include the gain which the assessee makes by selling the asset and parting with possession of it. We see no justification for this argument. In our opinion there is no logical distinction between income arising from the asset transferred to the wife and income arising from the sale of the assets so transferred. The profits or gains which arise from the sale of the asset would arise or spring from the asset, although the operation by which the profits or gains is made to arise out of the asset is the operation of the sale. If the asset employed, say by way of investment and produces income, the income arises or springs from the asset; the operation, which causes the income to spring from the asset, is the operation of the investment. In the operation of the investment, income is produced, 365 while the asset continues to belong to the assessee, while in the operation of a sale, gain is produced, which is still income but in the process the title to the asset is parted with. Although the processes involved in the two cases are different, the gain which has resulted to the owner of the asset, in each case, is the gain, which has sprung up. or arisen from the asset. There is hence no warrant for the argument. that the capital gain is not income arising from the assets but it is income which arises from a source which is different from the asset itself. It was argued in the second place that section 16(3)(a)(iii) was enacted in 1937 when the word 'income ' did not include 'capital gains ' and income from property was understood to be income falling under that head in section 6 of the Act. The inclusion of 'capital gains ' in the definition of 'income ' was for the first time enacted in 1947. It is true that at the time when section 16(3)(a)(iii) was enacted, the definition of ' 'income ' did not include 'capital gains ' but capital gains having been brought within the meaning of 'income ' in section 2(6C) the expression 'income ' as used in section 16(3) (a) (iii) must be construed according to the amended definition of the word and would, therefore, include capital gains. There is nothing in the context or language of section 16(3) (a) (iii) of the Act to suggest that capital gains are excluded from its scope. We see no reason why a restricted interpretation should be given to the provisions of section 16(3)(a)(iii) as contended for the appellant. On the contrary, the object of the enactment of the section is to prevent avoidance of tax or reducing the incidence of tax on the part of the assessee by transfer of his assets to. his wife or minor child. It is a sound rule of interpretation that a statute should be so construed as to prevent the mischief and to advance the remedy according to the true intention of the makers of the statute. We are, therefore, unable to accept Mr. Mehta 's argument on this aspect of the case. For the reasons given we hold that the High Court has rightly answered the first question against the assessee and this appeal is accordingly dismissed with costs. R.K.P.S. Appeal dismissed.

The provisions regarding search and seizure by the Indian police are contained in sections 51 , 96, 98 and 165 of the Code of Criminal Procedure, 1898. None of these sections had any application to the facts and circumstances of the case. Any seizure by the Indian police of any property of a citizen not sanctioned under the law stated above or under any other law infringes the fundamental rights of the citizen guaranteed under article 19 and article 31 of the Constitution of India. This position is not affected even if the citizen whose goods are so seized files an application under section 623 of the Code and his application is dismissed by the Magistrate. In view of the provisions of article 370 it is doubtful if an offence committed in Jammu and Kashmir could be investigated by the police in India.

Civil Appeal No 12 of 1965. From the Judgment and Decree dated 29 4 1965 of the Rajasthan High Court in D. B. Civil Misc. Case No. 67 of 1965. B. D. Sharma for the Appellant. section N. Kacker, Sol. Genl., U. R. Lalit and Girish Chandra for Respondent No. l. section M. Jain for Respondent No. 2 The Judgment of the Court was delivered by KOSHAL, J. The facts forming the background to this appeal by certificate granted by the High Court of Rajasthan against its judgment dated the 29th April 1968, in so far as they are undisputed, may be stated in some detail. On the 28th February 1948, the Rulers of the erstwhile States of Alwar, Bharatpur, Dholpur and Karauli entered into a Covenant (hereinafter referred to as the Matsya Covenant) agreeing to merge their States into one State known as the United State of Matsya which was to come into being on the 1st of April 1948 with the Ruler of Dholpur as its Raj Pramukh. Article VI of the Covenant provided that the Ruler of each Covenanting State shall, as soon as may be practicable and in any event not later than the 15th March, 1948, make over the administration of his State to the Raj Pramukh and that thereupon all rights, authority and jurisdiction belonging to such Ruler which appertained or were incidental to the Government of his State. shall vest in the United State of Matsya. 65 Article Xl of the Covenant provided for the private properties of the Ruler and ran thus: "1. The Ruler of each Convenanting State shall be entitled to the full ownership, use and enjoyment of all private, properties (as distinct from State properties) belonging to him on the date of his making over the administration of that State to the Raj Pramukh. He shall furnish to the Raj Pramukh before the 1st May, 1948, an inventory of all the immovable properties, securities and cash balances held by him .16 such private property. If any dispute arises as to whether any item of property is the private property of the Ruler or State property it shall be referred to such person as the Government of India may nominate and the decision of that person shall be final and binding on all parties concerned. " The United State of Matsya came into being as stipulated in the Matsya Covenant on the 1st of April 1948 and during the same month the Ruler of Alwar, who is the appellant before us, furnished to the Raj Pramukh an inventory of all the immovable properties, securities and cash balances held and claimed by him as his private properties. On the 11th of April 1948, the Rulers of ten States, namely, Banswara, Bundi, Dungarpur, Jhalawar, Kishengarh, Kotah, Mewar, Partabgarh, Shahpura and Tonk entered into a Covenant agreeing to merge them into one State named the United State of Rajasthan. That Covenant was superseded by another dated the 10th of March 1949 (hereinafter called the Rajasthan Covenant) through which the United State of Rajasthan was to consist of the said ten States as also of four others, namely, Bikaner, Jaipur, Jaisalmer , and Jodhpur, with the Ruler of Jaipur as the Raj Pramukh. Clause (c) of Article I of the Rajasthan Covenant defined the expression "new Covenanting State" to mean any of the said four States. Article II of the Covenant last mentioned provided that the United State of Rajasthan would include any other State, the Ruler of which entered into an agreement with the Raj Pramukh, with the approval of the Government of India? to the integration of that State with the United State of Rajasthan Article XII of the Rajasthan Covenant provided: "(1) The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties), belonging to 66 him on the date of his making over the administration of that State to the Raj Pramukh of the former Rajasthan state or as the case may be, to the Raj Pramukh of the United State under this Covenant. " (2) If any dispute arises as to whether any item of property is the private property of the Ruler of a Covenanting State other than a new Covenanting State, or is State pro perty, it shall be referred to such person as the Government of India may nominate in consultation with the Raj Pramukh, and the decision of that person shall be final and binding on all parties concerned: "Provided that no such dispute shall be so referable after the first day of May, 1949. "(3) The private properties of the Ruler of each new Covenanting State shall be as agreed to between the Government of India in the States Ministry and the Ruler concerned, and the settlement of properties thus made shall be final. " On the 1st of May 1949, the Rulers of the States of Alwar, Bharatpur, Dholpur and Karauli which were the constituent States of the United State of Matsya, entered into an agreement (hereinafter called the Amending Agreement) with the Raj Pramukh of the United State of Rajasthan merging with four States into it with effect from the 15th of May 1949 in abrogation of the Matsya Covenant. While subscribing to the Amending Agreement the Ruler of Dholpur acted not only in his capacity as such but also as the Raj Pramukh of the United State of Matsya. Article IV of that Agreement effected amendments in the Rajasthan Covenant so as to make it applicable to the said four States with effect from the date last mentioned. No charge, however, was made in the provisions of clause (c) of Article I of Article XII of the Rajasthan Covenant. On the 14th of September 1949, Mr. V. P. Menon of the Ministry of States, Government of India, wrote the following letter to the Ruler of Alwar: "My dear Maharaja Sahib, "Your Highness will recall that the inventory of immovable properties, securities and cash balances furnished by Your Highness in accordance with Article, XI of the Covenant for the formation of the United State of Matsya was discussed with Your Highness at New Delhi on the 9th and 10th April, 1949. I now forward for Your Highness 's information a 67 copy of the final inventory of Your Highness 's private properties. It has the approval of the Government of India in the Ministry of States. The following claims of Your Highness and the counter claims of the former Matsya Government are still under consideration and the decision will be communicated to Your Highness as soon as possible. (1) cash balance of the Alwar State treasury; (2) claim for Rs. 4,82,520 as arrears of Privy Purse of Your Highness for 6 years from 1936 37 to 1942 43. Your Highness will appreciate that the settlement of the inventory is an integral part of an over all agreement in respect of all outstanding matters of dispute and does not stand by itself. "With kind regards, "Yours sincerely, Sd/ "(V. P. Menon)" This letter was accompanied by a copy of the "final ' inventory which listed 32 items. Reproduced below is the item at Serial No. 1 of that inventory: "section Description of property. Decision of the State No Ministry. City Palace including adjoining building. Ancestral. The portion of the building at present in use by the State for administrative purposes or for Museum and Imperial Bank will continue to be so used till such time as required. The requirements of the State in future will not be of the same order as today and every effort will be made to release the accommodation at present occupied in the Zenana & Mardana Mahals at the earliest practicable date. The State will bear the maintenance cost of the portions used by it. Any addition or alteration in the portion used by the State will require the prior consent of His Highness and should be carried out at State expense. " 68 Thereafter, correspondence went on between the Ministry of States and the Ruler of Alwar and on the 24th September 1952 the later received from the former a written communication dealing with 26 items of properties. The opening clause of Para 2 of the letter stated: "2. The Government of India have carefully considered all the outstanding questions in respect of your High Courts private properties, in consultation with the Rajasthan Government, and their decisions in respect thereof are as follows: " The description of each item covered by the letter was followed by the decision in respect thereof That part of the letter which deals with item 26 is set down below: "(26) City Palace including adjoining buildings: The City Palace with the adjoining buildings, comprising of the Jagir office, Central Record, lmperial Bank, Treasury, Gandhi National School etc. will be your Highness 's ancestral property. The secretariat building will however be State 1) property. This decision was reiterated in an office Memorandum issued by the Government of Rajasthan in the Political Department on the 30th of December 1952. Through a letter dated the 14th of October 1959 proceeding from his Private Secretary and addressed to the Chief Secretary, Ministry of Home Affairs, Government of India. the Ruler of Alwar claimed rent for three properties known as the Secretariat building, Daulat Khana building and Indra Viman Station adjoining the City Palace and the bungalow at Sariska, which were in the occupation of the Rajasthan Government. The claim was made on the ground that all the four properties had been declared to be the private properties of the Ruler in the inventory appended to the letter dated the 14th September 1949 mentiond above. The claim was rejected by the Ministry of Home Affairs which asserted in its letter dated the 24th of December 1959 that the four properties in question had not been recognized as the private properties of the Ruler. The claim was reiterated by the Ruler through a letter issued by Shri Gopesh Kumar Ojha, his Legal & Financial Adviser, but the name was again turned down by the Ministry of Home Affairs through their letter dated the 6th/8th of December 1960 in which the position taken was: "The Statement regarding the extent of your Private Property rights in the City Palace area made in our letter dated 24 12 59 are based upon the decision reached in March 1952 after discussion with your Highness and we regret that they cannot now be reopened." 69 2. It was in the above background that the Ruler of Alwar filed two suits, being suits Nos. 4 and 5 of 1963, in the court of the District Judge, Alwar. In Suit No. 5 the prayer made was that the three properties known as the Secretariat building, Daulat Khana building and Indra Viman Station be declared to be the private properties of the plaintiff and that the State of Rajasthan be ejected therefrom, or, in the alternative, be ordered to pay rent at a specified rate. A decree for 36,000% was also claimed for mesne profits. In suit No. 4 of 1963, the Claim was that the plaintiff was entitled to rent or mesne profits in respect of a building forming part of the Mardana Palace. Both suits were resisted by the Union of India and the State of Rajasthan who were joined as the two defendants to each of them and it was claimed inter alia that the provisions of article 363 of the Constitution of India were a complete bar to their maintainability. The two suits were transferred by me High Court of Rajasthan to itself and the question of their maintainability was mooted before it with reference to the provisions of article 363 of the Constitution 1 which states: (1) Notwithstanding anything in this Constitution but subject to the provisions of article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of Indian State and to which the Government or the Dominion of India or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument. (2) In this article (a) "Indian State" means any territory recognised before the commencement of this Constitution by His Majesty or the Government of the Dominion of India as being such a State; and (b) "Ruler" includes the Prince, Chief or other per son recognised before such commencement by 70 His Majesty or the Government of the Dominion of India as the Ruler of any Indian State. The High Court proceeded to determine whether the dispute in suit No. 5 of 1963 was one arising out of an agreement such as fell within the ambit of article 363 (as was contended by the defendants) or was merely a one sided decision of the Government of India and, therefore, outside the purview of the article as was asserted by the plaintiff. It held that the "decisions" contained in the latter dated the 14th of September 1949 had really resulted from an agreement between the Ministry of States and the plaintiff, that the extent of the building adjoining the City Palace was not to be found with precision in the inventory appended to the said letter, that consequently there was a real dispute between the parties whether the suit property was included in the expression "adjoining building" and that the adjudication of such a dispute was barred by the provision of article 363 of the Constitution. Suit No. 5 of 1963 was, therefore, dismissed, but with no order as to costs. In regard to suit No. 4 of 1963, however, the High Court held that the property in dispute was clearly a part of the City Palace itself as it was comprised in the Mardana Mahal that the dispute was altogether illusory in view of the fact that right up to the 8th of December 1960, the Government of India had been taking the stand that the disputed property was the private property of the plaintiff, that the dispute was consequently not barred by the provisions of article 363 of the Constitution, and that the suit, there fore, deserved to be decided by the District Judge on merits. In the result, suit No. 4 of 1963 was remitted to the trial court for decision according to law. It is the judgment of the High Court in suit No. S of 1963 alone that is challenged in this appeal. Mr. B. D. Sharma, learned Counsel for the appellant Ruler, has vehemently contended that the letter dated the 14th December 1949 was not the result of an agreement between the plaintiff and the Government of India and that, on the other hand, it was a decision arrived at in pursuance of clause (3) of Article XI of the Matsya Covenant. In support of this contention it was pointed out that the letter was issued as a sequel to the inventory furnished by the plaintiff under clause (2) of that Article and that the operative part of the inventory appended to the letter is headed "decision of the States Ministry" which, according to learned Counsel, clearly negatives an agreement. It was further urged that even the Rajasthan Covenant did not envisaged any agreement in so far as the plaintiff was concern cd because he was not the Ruler of a "new Covenanting State" with 71 in the meaning of that expression as used in clauses (2) and (3) of Article XII thereof, that it was clause (2) of that Article which governed him and which again provided for a decision being given on disputes relating to properties and that the letter dated 14th September 1949 must still be construed as a decision if the Matsya Covenant was held to be inapplicable. A careful examination of the material on the record, however, clearly makes out that the contention is without substance as we shall presently show. It is no doubt true that the plaintiff had furnished the inventory of the properties held by him in accordance with Article XI of the Matsya Covenant as is stated in the opening paragraph of the letter dated the 14th of September 1949. It further cannot be gain said that the third column of the inventory to that letter was headed "decision of the State Ministry". These two factors, without more, might have gone a long way to support the case propounded on behalf of the plaintiff, but they are sought to be used out of context as is clear from a perusal of the entire letter from which it can be safely spelt out that the so called "decision" was nothing but an agreement arrived at between the Government of India and the plaintiff. It is pertinent that the letter mentions that the inventory furnished by the plaintiff was discussed with him at New Delhi on the 9th and 10th of April 1949 and then states that a copy of the final inventory of the plaintiff 's private properties, which had the approval of the Government of India in the Ministry of States, was forwarded to him. Now, under clause (3) of Article XI of the Matsya Covenant as also clause (2) of Article XII of the Rajasthan Covenant no approval of the Ministry of States was called for. In fact, what each of those clauses provided was that if any dispute arose as to whether any item of property was the private property of the Ruler concerned or of his erstwhile State, it was to be referred to such person as the Government of India might nominate, and the decision of that person was to be final and binding on all parties concerned. Now, it is not the case of the plaintiff that the Government of India nominated a person to whom the dispute was to be referred; nor is it claimed by him that such a person gave any decision. The contents of the letter, therefore, are not at all relateable to those of either of the two clauses just above mentioned. On the other hand, they clearly indicate that the so called "decisions" of the Sates Ministry contained in the inventory appended to the letter formed really the record of the agreement arrived at between the Ministry of States and the plaintiff as a result of negotiations held on the 9th and 10th of April 1949. In this connection, reference may pointedly be made to paragraph 3 of the letter which bears repetition: 72 "3. Your Highness will appreciate that the settlement of the inventory is an integral part of an overall agreement in respect of all outstanding matters of dispute and does not stand by itself." This paragraph talks of "the settlement of the inventory" which was to be an integral part of an "over all agreement in respect of all outstanding matters of dispute" and was not to stand by itself. In our opinion, the paragraph is a clincher against the plaintiff and indicates without any shadow of doubt that what the letter said was that all the disputes regarding the property of the Ruler were to be settled by an over all agreement, that the contents of the inventory appended to the letter merely recorded the settlement between the plaintiff and the Ministry of States and that even those contents were not to be regarded as a final settlement of the matters dealt with therein unless they formed part of an agreement embracing all items of property. It may be noted here that the Matsya Covenant had been abrogated with effect from the 15th May 1949 by the Rajasthan Covenant as modified by the Amending Agreement and there was thus no question of any decision being given after that date under clause 3 of Article XI of the Matsya Covenant and that the only surviving provision under which disputes regarding property owned by the plaintiff could be determined after the 15th of May 1949, was Article XII of the Rajasthan Covenant. It is true that the expression "new Covenanting State" as defined in clause (c) of Article I of that Covenant meant only any of the four States of Bikaner, Jaipur, Jaisalmer and Jodhpur, that the definition was not amended by any provision of the Amending Agreement, so that the State of Alwar could not be regarded as a "new Covenanting Stat. _" for the purpose of clause (3) of Article XII of the Rajasthan Covenant and that the clause of that Article in accordance with which disputes relating to property claimed by tho Ruler of Alwar as his private property were to be determined was clause (2) which provided for their decision by a person nominated by the Government of India in that behalf. The fact remains, however, that no such person was ever nominated and that the letter dated the 14th September, 1949, cannot be construed (for reasons already stated by us) as laying down a decision of any such person. What appears to have happened is that instead of following the course indicated in clause (2) last mentioned and having the disputes referred for decision to a person nominated by the Government of India, the parties (the Government of India and the appellant) decided to adopt the method of mutual agreement to settle those disputes a method which always remained open to them, notwithstanding the Matsya 73 Covenant and the Rajasthan Covenant. Such mutual agreement could, by no stretch of imagination be regarded as a decision by a person nominated by the Government of India either under clause (3) of Article XI of the Matsya Covenant or clause (2) of Article XII of the Rajasthan Covenant and must be deemed to be nothing more or less than an agreement simpliciter even though it was labelled as a "decision of the States Ministry" in the inventory appended to the letter dated the 14th September, 1949. Another contention raised by Mr. Sharma was that even if the letter dated the 14th September, 1949 was held to evidence an agreement, it was not hit by the provisions of article 363 of the Constitution inasmuch as it was an agreement resulting from the Rajasthan Covenant which alone according to him, was the agreement covered by the article. This contention is also without substance. Article 363 of the Constitution bars the jurisdiction of all courts in any dispute arising out of any agreement which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State to which the Government of India was a party. The operation of the article is not limited to any "parent" Covenant and every agreement whether it is primary or one entered into in pursuance of the provisions of a preceding agreement would fall within the ambit of the article. Thus the fact that the agreement contained in the letter dated the 14th September 1949 had resulted from action taken under the provisions of the Rajasthan Covenant, is no answer to the plea raised on behalf of the respondents that article 363 of the Constitution is a bar to the maintainability of the two suits, although we may add, that agreement did not flow directly from the Rajasthan Covenant but was entered into by ignoring and departing from the provisions of clause (2) of Article XII thereof. The only other contention put forward by Mr. Sharma was based on the contents of column 3 of Item 1 of the inventory appended to the letter dated the 14th September 1949. He drew our attention to the mention in that column of the portions of the adjoining building being occupied by the State for administrative purposes or for Museum and Imperial Bank and also comprising the Zenana and Mardana Mahals. According to him, this meant that the entire building adjoining the City Palace was held to be the private property of the plaintiff, which finally vested in the plaintiff as from the date of the letter and of which the plaintiff could not be divested by any subsequent decision of the Ministry of States. In this connection, Mr. Sharma urged that the Ministry of States had no power of reviewing a settlement once arrived at and argued that if it was claimed that such 6 817 SCI/78 74 a power existed, the determination by a court of the limited question of the power of review would be barred by the provisions of article 363 of the Constitution. This contention also is of no avail to him. As held above, the agreement dated the 14th September 1949 was not to stand by itself but was to be a part and parcel of an overall agreement embracing all outstanding matters of dispute. It follows that the terms of the agreement contained in the letter were liable to change till a final agreement was reached, and in this view of the matter no finality could be said to attach to those terms until all the disputes became the subject matter of an agreed settlement. The terms of the inventory attached to the letter were thus merely tentative, the process of settlement being a continuous one till all the disputes were finally resolved. And the ultimate decision of the Ministry of Home Affairs conveyed in its letter of the 24th of December 1959, not to treat the Secretariat building, Daulat Khana building and Indra Viman Station adjoining the City Palace to be the private property of the plaintiff, was based upon a mutual agreement between the parties which was reached after discussion in March 1952, as part of an over all agreement as is evident from the letter of the Ministry of Home Affairs dated the 6th/8th of December 1960. In view of the conclusions arrived at above, we hold that the ` 'decision" sought to be enforced by the plaintiff is an agreement hit by article 363 of the Constitution and that the High Court was right in dismissing suit No. 5 of 1963 as being not maintainable. The appeal, therefore, fails and is dismissed, but with no order as to costs. N.V.K. Appeal dismissed.

The appellant who was the Ruler of a princely state entered into a covenant agreeing to merge his state into a union called the United States of Matsya. The Matsya Covenant, by article Xl Cl. (2) provided that the ruler of each state shall furnish to the Raj Pramukh an inventory of all the inn movable properties, securities and cash balances held by him as private property and cl. (3) provided that if any dispute arose as to whether any item of property was the private property of the ruler or the state property it shall be referred to such person as the Government of India may nominate in the decision of that person shall be final and binding on all parties. The appellant furnished an inventory of all properties claimed to be his private "property. Sometime later the rulers of the constituent States of Matsya entered into a Covenant with the Rajpramukh of the United State of Rajasthan for merger of their States into the State of Rajasthan in abrogation of the Matsya Covenant. The Rajasthan Covenant by article XII, Cl. (2) provided for the settlement of any dispute as to whether the property was private property or state property by reference to such person as the Government of India may nominate in consultation with the Rajpramukh and that the decision of such person shall be final and binding on the parties. The Ministry of States, Government of India wrote on 14th September, 1949 to the appellant that the settlement of the inventory was an integral part of an overall agreement in respect of all outstanding matters of dispute and did not stand by itself. After correspondence with the Government of India the appellant received a written communication intimating the decision of the Government of India in respect of 25 items of the property. The appellant claimed that four buildings which were in occupation of the State Government had been declared as his private properties in the inventory appended to the letter of the Government of India and that the State Govern 63 ment should pay rent to him in respect of those buildings. This claim of the appellant having been rejected, he filed a suit in the district court for a declaration that the properties were his private properties and that the respondents should be ordered to pay rent to him. The suit was transferred by the High Court to itself, The High Court dismissed the suit on the ground that adjudication of the dispute was barred by article 363 of the Constitution. In appeal to this Court it was contended that the letter of 14th September, 1949 was the result of a decision arrived at in pursuance of cl. (3) of article XI of Matsya Covenant and cl. (2) of article XII of the Rajasthan Covenant and must be construed as a decision of the Government of India. Dismissing the appeal, ^ HELD: 1. The decision sought to be enforced is an agreement hit by article 363 of the Constitution and the High Court was right in dismissing the suit. [74H] 2. The so called decision was nothing but an agreement between the Government of India and the appellant. The letter clearly stated that the inventory furnished by the plaintiff was discussed with him at New Delhi and that a copy of the final inventory of the appellant 's private properties, which had the approval of the Government of India in the Ministry of States, Was forwarded to him. Under clause (3) article XI of the Matsya Covenant as also clause (2) of article XII of the Rajasthan Covenant, no approval of the Ministry of States was called for. What each of these clauses provided was that if any dispute arose as to whether any item of property was the private property of the ruler concerned or of his erstwhile state, it was to be referred to such a person as the Government of India might nominate, and the decision of that person was to be final and binding on all parties concerned. Neither the Government of India nominated a person to whom the dispute was to be referred; nor did any such person give a decision on the point. The contents of the letter, are not at all relatable to those of either of the two clauses. On the other hand, they clearly indicate that the so called "decisions" of the States Ministry contained in the inventory appended to the letter formed really the record of the agreement arrived at between the Ministry of States and the plaintiff as a result of negotiations. [71D H] 3. Paragraph three of the letter talks of the "settlement of the inventory '. which was tc. be an integral part of an "overall agreement in respect of all outstanding matters of dispute" and was not to stand by itself. What the said was that all the disputes regarding the property of the Ruler were to be settled by an overall agreement that the contents of the inventory appended to the letter merely recorded the settlement between the appellant and the Ministry and that even those contents were not to be regarded as final settlement of the matters dealt with therein unless they formed part of an agreement embracing all items of property. [72B C] 4. In the instant case instead of having the disputes referred for decision to a person nominated by the parties they decided to adopt the method of mutual agreement to settle those disputes. Such mutual agreement could not 64 be regarded as a decision by a person nominated by the Government of India either under clause (3) of article of Matsya Covenant or clause (2) of article Xll of Rajasthan Covenant. It must be deemed to be nothing more nor less than an agreement simpliciter even though it was labelled as a decision of the States Ministry. [72H 73B] 5. Article 363 of the Constitution bars the jurisdiction of all courts in any dispute arising out of any agreement which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian Sate to which the Government of India was party. The operation of the Article is not limited to any "parent" Covenant and every agreement whether it was primary or one entered into in pursuance of the provisions of a preceding agreement would fall within the ambit of the Article. The fact that the agreement contained in the letter dated the 14th September, 1949 had resulted from action taken under the provisions of the Rajasthan Covenant, is no answer to the plea raised on behalf of the respondents that article 363 of the Constitution is a bar to the maintainability of the two suits, although that agreement did not flow directly from the Rajasthan Covenant but was entered into by ignoring and departing from the provisions of clause (2) of article XII thereof. [73D E]

ivil Appeal No. 525 of 1989. From the Judgment and Order dated 11.12.1985 of the Calcutta High Court in Civil Rule No. 2716 of 1981 Shankar Ghosh and Rathin Das for the Appellant. D.P. Mukherjee, and G.S. Chaterjee for the Respondent. The Judgment of the Court was delivered by 399 RAY, J. Special leave granted. Heard learned counsel for both the parties. This appeal on special leave arises out of an applica tion for preemption filed under the provisions of Section 8 of West Bengal Land Reforms Act, 1955 (West Bengal Act X of 1956) by the respondent, Md. Nasiruddin to pre empt the land sold to the appellant, Abdulla Kabir by a Kobala dated May 16, 1974 by a co sharer having 1/4th interest in plot No. 115/852 appertaining to Khatian No. 1944 on the ground of his being co sharer in the said holding. The land in ques tion i.e. plot No. 115/852 measuring 0.3 cents was owned by one Sarat Chandra Dutta, son of Amulaya Ratan. Sarat Chandra Dutta was an agriculturist and he used to keep his agricul tural implements in the said property. He also possessed along with the said land other agricultural lands as agri culturist and in occupancy raiyati interest. During R.S. operation also the said property was recorded in his name as 'Raiyat Sthitiban ' and the classification of land was re corded as 'Bari ' i.e. homestead of the said agriculturist. On September 20, 1967, Sarat Chandra Dutta, owner of the said plot of land, sold the same by a registered Kobala to four persons namely Sisir Kumar Mondal, Naba Kumar Mondal, Madhusudan Mondal and Purmlakshmi Mondal. Thereafter on October 28, 1968 Sisir Kumar Mondal and Naba Kumar Mondal sold their shares to Nurunessa Khatun, predecessor of the respondent petitioner. On the basis of this Kobala Nurunessa Khatun became co sharer in respect of the said land. After the death of Nurunessa Khatun her heirs including the eldest son, the respondent petitioner, inherited the right of occupancy as co sharer. On May 16, 1974, Purnalakshmi sold her 1/4th interest to the appellant, Abdulla Kabir by Kobala (Exh. l(b). It is the case of the respondent petitioner that as no notice of the said sale was served on his mother, Nurunessa Khatun, he could not know of the said sale earli er. However, on taking certified copy of the said sale on May 3, 1977, the respondent petitioner filed an application for pre emption under Section 8 of the West Bengal Land Reforms Act after depositing the requisite sum as required to be deposited under the said Act. This application was registered as Misc. Case No. 36 of 1977 in the Court of Munsif, 2nd Court, Bolpur. The appellant contested the case by filing a written objection contending inter alia that the respondent petitioner was neither co sharer of the holding nor an adjoining land owner. The disputed property is non agricultural tenancy. The petition for preemption is barred by limitation as the respondent petitioner was all along aware of the said sale and the story of his coming to know of such sale after taking copy of sale deed on May 3, 1977 was absolutely false. 400 The distuted deed does not contain the recital that the respondentpetitioner was an adjoining land owner. The peti tion for pre emption in such circumstances was liable to be dismissed. Three issues were framed by the Trial Court i.e.: (1) Whether the case land is non agricultural and whether section 8 of the West Bengal Land Reforms Act will be ap plicable in this case; (2) Whether the petitioner was a co sharer in respect of case holding from before purchase of the disputed land; (3) Whether the case is barred by limitation? The Trial Court held that the petitioner respondent was a cosharer and was entitled to pre empt; the application for pre emption was not barred by limitation as it was filed within a period of three years of knowledge of the same as no notice of sale was served on the petitioner respondent. The Trial Court further held that the subject matter of the sale was recorded as "Bastu" in the Kobala dated May 16, 1974 (Exh. l(b) and "Bari" in the R.S. Record of Right (Exh. 3(h) and though Sarat Chandra Dutta, the owner of the land was an agriculturist yet this homestead land being not included in the raiyat holding could not be treated as agricultural land according to the provisions of West Bengal Land Reforms Act because of the nonagricultural use as evident from the R.S. Record of rights. The land is non agricultural land and as such the application for pre emp tion under Section 8 of the said Act was not maintainable. The Misc. Case was, therefore, dismissed. Against the said judgment and order, Misc. Appeal No. 84 of 1980 was filed by the respondent in the 2nd Court of the Addl. District Judge, Birbhum. The appellate court reversed the findings of the trial court and held that the suit property was recorded as of raiyati interest in the R.S. Record of rights and the suit land being the homestead of Sarat Chandra Dutta who was an agriculturist, it was agri cultural land according to the provisions of the said Act and the application for pre emption under Section 8 of the West Bengal Land Reforms Act was maintainable. The appellate court further upheld the findings of the trial court that the application was not barred by limitation and the appel lant (respondent herein) was a co sharer of the said land. The Misc. Appeal was, therefore, allowed and the judgment of the trial court was set aside. 401 Against this judgment and order of the appellate court, the appellant, Abdulla Kabir filed a petition in revision being C.R. No. 2716 of 1981 in the High Court at Calcutta. During the pendency of the said Revisional case the respond ent pre emptor made an application for amendment of the relief claimed in the application for pre emption by adding an alternative relief for pre emption under Section 24 of the West Bengal Non Agricultural Tenancy Act. After hearing both the parties, the amendment was allowed subject to the payment of costs quantified at Rs. 1,000. Thereafter, on December 11, 1985 the Civil Rule was discharged by holding that: " . . I am not satisfied that the finding recorded by the appellate court based as it is on an assessment of evidence, suffers from any jurisdictional defect or error, so as to entitle this Court to interfere in revision. This Court cannot enter into evidence and come to its conclusion. " It has also been held that in view of the amendment of the petition even if it is held that the land was non agri cultural land, preemption could be granted under Section 24 of the Non Agricultural Tenancy Act. Against this judgment and order, the instant appeal on special leave has been preferred in this Court. Dr. Ghosh, learned counsel appearing on behalf of the appellant has contended in the first place that the land in question has been recorded as "Bari, teen khanna ghar" in the R.S. Record of rights i.e. it is not agricultural land. The land is used for non agricultural purposes though the right of the owner of the land has been recorded as agricul turist "raiyat sthitiban. " He further contended that as the 'bari ' or the homestead is not situated on the agricultural land in the holding held by a Raiyat, it cannot be treated as agricultural land. It is non agricultural land used for non agricultural purposes and the provisions of Section 8 of the Land Reforms Act are not applicable to such a holding as has been held by the trial court. The finding of the High Court to the effect that there was no error of jurisdiction is wholly unwarranted and as such the appeal should be allowed. Dr. Ghosh next contended referring to the decision in Eyachhin Ali Naskar and Ant. vs Golap Gazi, that the nature of the holding whether it is agricultural or non agricultural has to be determined with reference to the user of the land 402 comprised in the holding. The land in question is used for nonagricultural purposes and it does not form a part of his raiyati holding comprising of Agricultural land. Therefore, it cannot be treated as agricultural land under the West Bengal Land Reforms Act. The land being recorded as "Bastu" in the R.S. Record of rights, it is to be treated as non agricultural land. Dr. Ghosh next submitted that the High Court did not give a definite finding whether Section 8 of the Land Re forms Act or Section 24 of the West Bengal Non Agricultural Tenancy Act was applicable in this case. Mr. Ghosh, there fore, submitted that there has been an error of jurisdiction and the appeal should be allowed. Dr. Ghosh has lastly contended that Section 3A was inserted by West Bengal Land Reforms (Amendment) Act, 1981 and assent of the President to the same was published in the Gazette on 24th March, 1986. Referring to this provision he submitted that the matter should be sent back and the appel lant should be permitted to take such defences in view of the amended provisions as are available to him and the matter should be re heard by the trial court. He drew the notice of the court to the decisions in Dwarka Nath Prasad Atal vs Ram Rati Devi, and Luigi Ambrosini Ltd. vs Bakare Tinko and Another, A.I.R. 1929 PC 306. We are unable to accept the contentions made on behalf of the appellant for the reasons stated hereinbelow. The land in question which is 1/4th share of plot No. 115/852 has been recorded in the R.S. Record of rights as "Raiyat Sthitiban" i.e. the original owner of the said land Sarat Chandra Dutta was a raiyat and the classification of the land has been recorded as "bari". The entry in the record of right is presumed to be correct and this has not been challenged by any body. It, therefore, appears that the land in question is the homestead land of Sarat Chandra Dutta who is on agriculturist being recorded as raiyat. Section 2(6) of the West Bengal Land Reforms Act, 1955 defines holding as: "holding" means the land or lands held by a raiyat and treated as a unit for assessment of revenue. " Section 2(7) defines land as under: 403 "land" means agricultural land other than land comprised in a tea garden which is retained under sub section (3) of section 6 of the West Bengal Estates Acquisition Act, 1953, and includes homesteads but does not include tank. Explanation: "Homestead" shall have the same meaning as in the West Bengal Estates Acquisi tion Act, 1953" So according to the above provisions the homestead of an agriculturist is agricultural land. It has been found by the courts below that the land in question is a homestead land recorded as "Bari" in the R.S. record of rights. The owner of the said land Sarat Chandra Dutta is also recorded as a raiyat i.e. "raiyat sthitiban". In other words, it is the homestead of a raiyat i.e. an agriculturist. The trial court held that this R.S. record of right is not erroneous as the same has not been challenged by any body in the petition. Rather the respondentpetitioner supported the contention that "Sarat Chandra Dutta, the owner of plot No. 115/852 was mainly an agriculturist and his main source of living was agriculture. " The learned Munsif however, held that since the said homestead is not included in the holding of the raiyat i.e. the homestead does not stand on the agricultural land included in his holding, the homestead land cannot be treated as agricultural land relying on the decision in Eyachhin Ali Naskar and Anr. vs Golap Gazi (supra). This finding of the trial court has been negatived by the lower appellate court as well as by the High Court and it has been held that the said homestead land is agricultural land. This finding, in our view, is quite valid and legal. It has been observed by the Calcutta High Court in Eyachhin Ali Naskar and Anr. vs Golap Gazi that: " . . It is thus obvious that the nature of the holding has to be determined with reference to the user of its land or lands under the said Act. Section 2(6) of the West Bengal Land Reforms Act defines "holding" as the land or lands held by a raiyat and treated as a unit for assessment of revenue. Under clause (7) of Section 2 of the same Act "land" in the Act means agricultural land other than land comprised in a tea garden which is re tained under subsection (3) of Section 6 of the West Bengal Estate Acquisition Act, 1953 and includes homesteads. " It has been further observed that: 404 " . . In a case where as here the holding is recorded as bastu and the non agricultural user is also evident, as appearing from the revisional record of rights wherein it has been stated that there are two huts standing thereon, the land cannot be treated as land to which the provisions of the Land Reforms Act will be applicable, as the Act applies to agricultural lands only. " This observation of the High Court has been made wrongly in as much as the High Court did not take notice of the amended provision of the West Bengal Non Agricultural Tenan cy Act, 1949 amended by Act 8 of 1974. Section 2(4)(a) defines non agricultural land as land used for purposes not connected with agriculture or horticulture but does not include a homestead to which the provisions of the West Bengal Land Reforms Act, 1955 apply. Taking notice of this provision it is crystal clear that homestead land does not fall within the province of non agricultural land both under the Non Agricultural Tenancy Act as well as under the West Bengal Land Reforms Act, 1955. In that view of the matter the whole basis of the observation of the High Court to the effect "that where the holding is recorded as bastu and the non agricultural user is also evident, as appearing from the revisional record of rights wherein it has been stated that there are two huts standing thereon, the land cannot be treated as land to which the provisions of the Land Reforms Act will be applicable as the Act applies to agricultural lands only" is wrong. The judgment is per incuriam. As has been stated hereinbefore that the definition of land as given in the West Bengal Land Reforms Act, 1955 refers to agricultural land and includes homestead. Explanation to sub section 7 of section 2 further provides that "Homestead shall have the same meaning as in the West Bengal Estates Acquisition Act, 1953. " Section 2(g) of the West Bengal Estates Acquisition Act, 1953 defines; "Homestead" means a dwelling house together with any court, yard, compound, garden, out house, place of worship, family graveyard, library, office, guest house, tanks, wells, privies, latrines, drains and boundary walls annexed to or appertaining to such dwelling house ;" Therefore, on a conspectus of the aforesaid provisions, it obviously follows that homestead of an agriculturist even though the same is included in the holding of the raiyat but not on the agricultural land still it is to be treated as agricultural land being the homestead of the agriculturist under the provisions of the West Bengal Land Reforms 405 Act read with West Bengal Estates Acquisition Act and West Bengal Non Agricultural Tenancy Act. Therefore, the applica tion under Section 8 of the West Bengal Land Reforms Act filed by the respondentpetitioner as a co sharer of the said holding for pre emption of the land purchased by a stranger i.e. the appellant is maintainable under law as has been rightly held by the lower appellate court as well as High Court. The application for pre emption under Section 8 of West Bengal Land Reforms Act was properly allowed by lower appellate court and the said order was maintained by High Court. There is no infirmity in this finding and we uphold the same. As regards the second contention it appears that by amendment an alternative relief under Section 24 of the West Bengal NonAgricultural Tenancy Act has been inserted in the application for preemption. It also appears that the said application for amendment was allowed after hearing both the parties and that no objection to the said application for amendment was taken at the time of hearing of the applica tion for amendment nor at the final hearing of the Revision Case any objection was raised on this score. Moreover, we have already held that Section 8 of West Bengal Land Reforms Act is applicable to this case. The appellant therefore, cannot be permitted to raise this question anew in this Court. The last submission advanced on behalf of the appellant is, also, in our considered opinion, of no substance. Sec tion 3A which has been introduced by West Bengal Land Re forms (Amendment) Act, 1981 is quoted hereinbelow: "3 A. Rights of all non agricultural tenants and undertenants in non agricultural land to vest in the State (1) The rights of all non agricultural tenants and undertenants under the West Bengal Non Agricultural Tenancy Act, 1949 (West Bengal Act XX of 1949), shall vest in the State free from all encumbrances and the provisions of sections 4, 5 and 5A of Chapter II of the West Bengal Estates Acquisi tion Act, 1953 (West Bengal Act I of 1954), shall, with such modification as may be neces sary, apply mutates mutant to non agricultural tenants and under tenants within the meaning of the West Bengal Non Agricultural Tenancy Act, 1949 as if such non agricultural tenants and under tenants were intermediaries and the land held by them were estates and a person holding under a nonagricultural tenant or under tenant were a raiyat. 406 (2) On the vesting of the estates and rights of intermediaries in any non agricultural land under sub section (1), the provisions of Chapter IIS of this Act shall apply. (3) Every intermediary whose estates or inter ests have vested in the State under sub sec tion (1), shall be entitled to receive an amount to be determined in accordance with the provisions of section 14V of this Act. " The said section refers to the vesting of the interest of nonagricultural tenants by treating them as intermedi aries and a right of retention of such non agricultural lands within the ceiling limit has been provided therein. This provision has nothing to do with the questions involved in this appeal. There is nothing to show that the nonagri cultural land in plot No. 115/852 has vested in the State and the same has not been retained by the owner nor there is any thing to show that the original owner, Sarat Chandra Dutta had in his possession non agricultural land exceeding the ceiling limits even assuming for arguments sake that the land in question is non agricultural land. But we have held hereinbefore that the land being homestead of an agricultur ist is agricultural land. Therefore, the amended provision of Section 3 A of the said Act does not require considera tion in the instant appeal in the background of the facts and circumstances of the case and the issues involved here in. The submission made on behalf of the appellant that the matter should be sent back to the trial court for giving the defendant an opportunity to raise issues on the amended provision for hearing and deciding the same by the court, is not tenable. In the circumstances it is needless to consider the decision in Dwarka Nath Prasad Atal vs Ram Rati Devi (supra). In that case an application was filed under Section 24 of West Bengal NonAgricultural Tenancy Act asking for pre emption in respect of the property mentioned in Schedule A of the application. The appellant resisted the respond ent 's claim for pre emption on various grounds including the ground that the property involved in the proceedings being agricultural land civil court in which the respondent had filed her application for pre emption had no jurisdiction to entertain the application for pre emption by reason of the provisions of the West Bengal Land Reforms Act. The learned Subordinate Judge held that the property involved in the proceeding was agricultural land and so Section 24 of West Bengal Non Agricultural Tenancy Act was not attracted and civil court had no jurisdiction to entertain the applica tion. The application was dismissed. The order was set aside on appeal holding that the land was non agricultural land and the Subordinate 407 Judge had jurisdiction to entertain the application. The judgment having been confirmed in appeal by the High Court of Calcutta, the petitioner filed an appeal on special leave before this Court. It had been held that since the judgment was rendered only on the preliminary question whether the court had jurisdiction to entertain the application and the other issues raised therein were not decided by the trial court, the lower appellate court over ruled the said finding but instead of remanding the matter to the trial court for decision on the other issues, disposed of the matter on merits whereas on the other issues the appellant might desire to lead evidence but that opportunity was denied to him. It was in the interest of justice that the appellant should be afforded an opportunity of being heard on the other issues. In that view of the matter the case was re manded for disposal. The decision in Luigi Ambrosini, Ltd. vs Bakare Tinko and Another (supra) does not apply to this case as the facts of that case are different from the facts of the instant case. As stated hereinbefore that this ruling has no applica tion to the facts of this case inasmuch as the application was not decided on a preliminary issue but the same has been decided on all the issues raised. Therefore, there is no question for remanding the matter for decision on the other issues. We therefore, find no substance in this contention advanced by the learned counsel for the appellant. For the reasons aforesaid we do not find any infirmity nor any illegality in the findings arrived at by the High Court. We, therefore, dismiss this appeal and uphold the judgment and order of the High Court. In the facts and circumstances of the case, there will be no order as to costs. N.V.K. Appeal dis missed.

The landlord filed a petition for eviction of his tenant on the ground of wilful default in payment of rent and bona fide requirement under sub clauses (ii) & (vi) respectively of Clause 13(3) of the C.P. and Berar letting of Houses and Rent Control Order, 1949. The landlord alleged that the rent was payable on the expiry of each month, and pleaded that as the tenant paid the rent in lump sums representing the rent of several months together, he had committed wilful default and was liable for eviction. The tenant contested the peti tion and pleaded that the accumulated rents were accepted by the landlord without any objection, and consequently he had no occasion to assume that the landlord was aggrieved by the manner in which the rents were paid. The tenant further asserted that the rent was payable at his convenience. The Rent Controller dismissed the application of the landlord both on the ground of bona fide requirement and wilful default. The Appellate Authority the Resident Deputy Collector confirmed the order of the Rent Controller in appeal. The landlord thereafter approached the High Court under Article 227 of the Constitution. The High Court while con firming the order of the Rent Controller in so far as the ground of bona fide necessity was concerned, held that the tenant was a habitual defaulter in payment of rent, and was therefore, liable for eviction. The tenants appellants in CA No. 1953 of 1980 challenged the order of their eviction, while the landlord appellant in CA No. 1954 of 440 1980 challenged the order rejecting his eviction application on the ground that he failed to prove his case of bona fide requirement. Allowing Civil Appeal No. 1953 of 1980, and dismissing Civil Appeal No. 1954 of 1980 the Court, HELD: 1. The relevant provisions of the Rent Control Order require a tenant to be "habitually in arrears with the rent" as a condition for the grant of the permission by the authority to the landlord to determine the lease. This condition in the Rent Control Order is different from the condition in several other statutes where mere nonpayment of rent for a particular period, has been provided as adequate ground for eviction of the tenant. [443C] 2. The crucial test to determine whether the tenant was a 'habitual defaulter ' is the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. [443G H] In the instant case, there was no objection whatsoever, raised on behalf of the landlord against the delayed pay ments. The High Court, therefore was not right in reversing the concurrent finding of the two courts below. The judgment is set aside, and that of the Resident Deputy Collector is restored. [444B] S.P. Deshmukh vs Shah Nihal Chand Waghajibai Gujarati, , followed. Pandurang Tukaram Rajkondawar vs Salaram Madhaorao Chavan, [1985] Mh. L.J. 169; Shishir Hari Mahajan vs Sanara siobai Rodmal Sharma and Anr., [1982] MH. L.J. 908 and Nathuji Narayanrao Udapure vs Narendra Vasanjibhai Thakkar and Anr., [1981] MH. L.J. 446, referred to. Both the Rent Controller and the Resident Deputy Collector have on a careful consideration of all the rele vant circumstances held that the landlord has failed to prove his case of bona fide requirement. The High Court while confirming the finding has again considered the 441 materials on the record. No acceptable ground for interfer ing with the concurrent findings of the three Courts has been shown. Civil Appeal No. 1954 of 1980 has therefore to be dismissed. [441H; 442A B]

vil Appeal Nos. 1227 to 1230 of 1979. From the Judgment and Order dated 24.11.1978 of the Gujarat High Court in Letters Patent Appeal Nos. 54, 52, 53, 55 of 1973. B. Datta, J.P. Pathak and P.H. Parekh for the Appellants. R.N. Sachthey, Bimal Roy Jad and Anip Sachthey for the Respondent. The Judgment of the Court was delivered by KANIA, J. These are the appeals by special leave from a common judgment of the Full Bench of the Gujarat High Court disposing of the Letters Patent Appeal Nos. 52 to 55 of 1973 and also Letters Patent Appeal No. 50 of 1973. It is a common ground that the appellants are the tenants of certain lands which form part of the estate or wanta of a Taluqdar. The question is whether the provisions of Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949, are applicable to the lands in question, and whether under the Bombay Taluqdari Tenure Abolition Act, 1949, which came into effect from 15th August, 1950, the said lands became vested in the State and all rights in the said land held by the Taluqdar became the property of the Government. Under the provisions of Section 6 of the said Act, inter alia, all uncultivated lands excluding the land used for building and other non agricultural purposes, vest in the State. Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949, runs as fol lows: "All public roads, lanes and paths, the bridges, ditches, dikes and fences on, or beside, the same. the bed of the sea and of harbours, creeks below high water mark, and of rivers, streams, nailas, lakes, wells and tanks, and all canals, and water courses, and all standing and flowing water, all unbuilt village site lands, all waste lands and all uncultivated lands (excluding lands used for building or other non agricultural purposes), which are not situate within the limits of the wantas as belonging to a taluqdar in a taluq dari estate shall except in so far as any rights of any person other than the taluqdar may be established in and over the same and except as may otherwise be provided by any law for the time being in force, vest in and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the Government and all rights held by a taluqdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector, subject to the 499 general or special orders of the Commis sioner, to dispose them of as he deems fit, subject always to the rights of way and of other rights of the public or of individuals legally subsisting. Explanation: For the purposes of this section, land shall be deemed to be unculti vated, if it has not been cultivated for a continuous period of three years immediately before the date on which this Act comes into force. " The question is whether for the purposes of this section the lands in question were uncultivated lands. It is an admitted position that the lands were leased by the Taluqdar to the tenants. There is also a clear and categorical find ing of facts that these lands had remained uncultivated for a period of 3 years immediately before the said Act came into force. Prima facie it would appear that in view of the said explanation to section 6 the lands must be regarded as uncultivated lands for the purposes of section 6 of the said Act and must be deemed to be vested in Government. Learned Counsel for the appellants, however, contended that as the lands had been put to cultivation earlier for some time even though not cultivated for continuous three years prior to vesting they cannot be regarded as uncultivated lands. According to learned Counsel, if the land is capable of being cultivated, it cannot be treated as uncultivated land within the meaning of section 6. He relied on a decision of this Court in State of Gujarat vs Gujarat Revenue Tribunal reported in [1980] 1 SCR page 233. Our attention has been drawn to the observation made at page 239 of the said re port. After setting out the provision of Section 6 it has been observed, as follows: "On a fair reading of the section, it would be evident that the vesting is in respect of properties which could be put to public use. It leaves the private properties of the taluq dar untouched. The legislative intent is manifested by clear enumeration of certain specific properties not situate within the wantas of a taluqdar. It begins by specifying 'All public roads, lanes, paths, bridges etc. ' and ends up with 'all village site lands, all waste lands and all uncultivated lands ', and these being public properties situate in a taluqdar 's estate must necessarily vest in the Government because they are meant for public use. In spite of vesting of such property in the Government, however, the conferral of the rights of an occupant on a taluqdar under section 5(1)(b) in respect of the lands in his actual possession, is saved. Pausing there, it is fair to observe that the words in parenthesis 'excluding lands used for building or other non agricultural 500 purposes ', exemplify the intention of the legislature not to deprive a taluqdar of such land, even though such property is uncultivated land, due to its inherent charac ter as well as by reason of the Explana tion. It is, therefore, evident that the determina tion of the question whether a particular category of property belonging to a taluqdar in a taluqdan estate is vested in the Govern ment or not, and the determination of the question whether the rights held by a taluqdar in such property shall be deemed to have been extinguished or not, will depend upon the category of that property. The expression 'all waste lands ' has been joined by conjunctive 'and ' with the expression 'all uncultivated lands '. They, therefore, indicate two distinct types of land. If the legislature had intended that the aforesaid expression should indicate one class of lands, the expression rather would have been 'all waste and uncultivated lands ' as against the expression 'all waste lands and all uncultivated lands '. Here we have, therefore, two distinct categories of proporties viz. (1) waste lands, and (2) uncultivated lands. The contention that the grass lands on hilly tracts which are incapa ble of cultivation were 'waste lands ' or 'uncultivated lands ' within the meaning of section 6 cannot be accepted . " The said decision of this Court and the observation relied on by the learned Counsel do not come in the aid of the contention made by the learned Counsel for the appel lants. Even according to the appellants themselves, the lands were under cultivation for some time prior to the coming into force of the said Act and hence, it could not be said that they were uncultivable lands. They were in fact, lands which were capable of cultivation and as a matter of fact subjected to cultivation for some time but, which as found by the High Court were not cultivated for continuous period of three years prior to the coming into force of the said Act. In these circumstances, the said lands are clearly covered by the definition of the expression "uncultivated land" as set out in the Explanation to section 6. As the said lands were uncultivated lands within the meaning of section 6, they must be deemed to have been vested in the Government and the contention of the appellants to the contrary must be rejected. In the result, there is no merit in the appeal and it is dismissed. There will, however, be no order as to costs. T.N.A Appeals dismissed.

The appellants were tenants of certain lands which formed part of a Taluqdari Estate. These lands though cul tivable were not cultivated for a continuous period of 3 years prior to the coming into Iorce of the Bombay Taluqdari Tenure Abolition Act, 1949. In the tenant 's appeal to this Court, on the question whether these lands were uncultivated lands within the meaning of Section 6 of the 1949 Act and thus became vested in the State: Dismissing the appeals, this Court, HELD: 1. The lands in question are clearly covered by the definition of the expression "uncultivated land" as set out in the Explanation to Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949. [500 F]. 1.1 Even according to the appellants themselves, the lands were under cultivation for some time prior to the coming into force of the said Act and hence it could not be said that they were uncultivable lands. They were in fact lands which were capable of cultivation and as a matter of fact had been subjected to cultivation for some time but were not cultivated 1or continuous period of three years prior to the coming into force of the Act. Accordingly the lands must be regarded as "uncultivated lands" for the purposes of Section 6 of the Act and must be deemed to be vested in the State Government. [500 E F, 499 C]. State of Gujarat vs Gujarat Revenue Tribunal, [1980]1 SCR233, held inapplicable. 497 498

ivil Appeal Nos. 3452 54 and 4030 32 of 1982. Appeals by Special leave from the Judgment and order dated the 20th November, 1979 of the Punjab and Haryana High Court in L.P.A. Nos. 26,62, 29, 38,39, and 30 of 1978. R.K. Garg and N.S. Das Bahl for the Appellants in CAs. Nos 3452 54 of 1982. M.K. Ramamurthi, and Mrs. Urmila Sirur for the Appellants in CAs. 4031/82 and CAs. 4030 32 of 1982. P.P. Rao and D.D. Sharma for the Respondents. The Judgment of the Court was delivered by PATHAK, J. The appellants, in these appeals by special leave, are aggrieved by the judgment of a Division Bench of the High Court of Punjab and Haryana affirming the dismissal of their writ petitions by a learned Single Judge of that Court. The appellants are teachers in the service of the State of Punjab. They claim the grades prescribed in paragraph 2 of the Government Circular letter No. 2036 ED. 1 67/2167 dated July 29, 1967, and in that regard seek the benefit of the Circular letter No. 9/9179 FR (2)/143 dated February 19, 1979 and its clarification by Circular letter No. 8937 5ED. 1179/2659 dated September 20, 1979. The Circular letter dated July 29, 1967 gave effect to the recommendations of the Kothari Commission with effect from November 1, 1966 in respect of teachers in Government Schools. Paragraph 2 of the Circular letter provided: "2. Lectures in Higher Secondary Schools, Punjab Institute of English and Masters/Mistresses with Post 884 graduate qualifications in High/Higher Secondary Schools will be placed in Rs. 300 25 450/25 600 grade provided they have 1st and 2nd Division Master 's Degree. Those with 3rd Class Master 's Degree will be placed in the grade of Rs. 250 25 400/25 550. " It was specified that "the number of posts in Lecturer 's grade will be 1517 i.e. 742 posts for the existing school Lecturers and 829 additional posts for other Masters/Mistresses with Post graduate qualifications. " It was clarified that "the Masters/Mistresses will be eligible to Lecturer 's grade only if they have Post graduate qualifications in the subject of their teaching. No one will be entitled to those 829 additional posts automatically. These posts will be allocated to various subjects keeping in view the requirements of the educational institutions and the appointments will be made keeping in view the rules/instructions as amended from time to time. " Paragraph 3 stated that "all trained graduates and all other Masters with Post graduate qualifications, who are not fitted in the scale of Lecturer, will be in the scale of Rs. 220 8 300 10 400/20 500. " It is apparent that paragraph 2 of the Circular letter dated July 29, 1967 is concerned essentially with providing for a Lecturer 's Grade: (1) It was intended to have 1571 posts in the Lecturer 's grade, consisting of 742 posts for the existing Lecturers and another 829 posts for Masters or Mistresses. Masters or Mistresses were eligible for these posts in the Lecturer 's grade only if they possessed Post graduate qualifications in the subject of their teaching. Those who did not satisfy that criterion were not eligible for those posts. Moreover, no one was entitled to any of the 829 additional posts automatically. The additional posts were to be distributed with reference to different subjects, and the distribution would be made having regard to the requirements of the educational institutions and subject to the rules and instructions currently in force. (2) Existing Lecturers and Masters or Mistresses with Post graduate qualifications, who possessed a Master 's degree in the first or second division, would be entitled to the grade of Rs. 300 25 450/25 600. Lecturers and 885 Masters or Mistresses with Post graduate qualifications who possessed a Master 's degrees in the third division would be entitled to the grade of Rs. 250 25 400/25 550 . The appellants say that they are employed as Masters and Mistresses in High and Higher Secondary Schools run by the Punjab Government and possess an M.A. or M.Sc. or B.T. or B.Ed. degree and some of them have even acquired an M.Ed. degree. They are presently paid according to the pay scale Rs. 220 500. They claim that they are entitled to either of the higher grades set forth in paragraph 2 of the Circular letter dated July 29, 1967. From what has gone before it is clear that they can legitimately claim the benefit of those grades only if they are appointed to the posts of Lecturer. And they do not dispute that they are not incumbents of those posts. Much reliance has been placed on the decision of this Court in State of Punjab vs Kirpal Singh Bhatia. In our opinion, that case is of no assistance to the appellants. That was a case which was primarily concerned with Circular letter No. 5058 FR II 57/5600 dated July 23, 1957. The Circular letter dated July 29, 1967 operates on a very different plane from the Circular letter dated July 23, 1957. A brief reference to the historical background of the Circular letter dated July 23, 1957 will suffice. Concerned at the low salaries granted to certain categories of Government servants, the Punjab Government issued Circular letter No. 5058 FR II/5600 dated July 23, 1957 revising their scales of pay. Paragraph 3 classified all teachers in the Education Department according to their qualifications in two broad categories, category A being: "B.A./B.Sc./B.Com./B.Sc. (Agriculture) and B.T./Diploma in Physical Education/Diploma in Senior Basic Training". and they would now carry the scale of pay: 886 "Rs. 100 8 190 10 250 with a higher start for M.A. or M.Sc. as at present. " As is evident, the category was defined by reference to the possession of the specified graduate degree or Diploma. In the event such a teacher also held a Post graduate degree he was entitled to a higher start in the grade. The grade, however, remained the same. It appears that several teacher tiled writ petitions in the High Court claiming revised scales of pay on the ground that they had taken graduate degrees and, therefore, were entitled to the benefit of the grade mentioned against Category in the Circular letter dated July 23, 1957. In opposition to the writ petitions, the State Government contended that the letter did not contemplate tho grant of the grade to all teachers but only to teachers appointed as Masters. The High Court held the teachers entitled to the benefit of the revised grade, whether or not they had been appointed as masters, because, in the opinion of the High Court, the qualifying criterion was the possession of a graduate degree. The judgment of the High Court was affirmed by this Court in Kirpal Singh Bhatia (Suprd). The State Government found it difficult, having regard to The prevailing burden on its financial resources, to extend the benefit of the Circular letter dated July 23, 1957 to the much wider section of teachers covered in consequence of the Court 's judgement. Accordingly, the State Government issued Circular letter No. 9/9/79 FR (2)/143 dated February 19, 1979, paragraph 3 of which stated that in order to ensure that "these unintended and large financial implications do not continue arising in future" the whole matter had been reconsidered by the State Government and as a result the government ordered that henceforth the teachers or the Education Department would not automatically be entitled to placement in the higher scales of pay in terms of paragraph 3 of the Circular letter dated July 23, 1957 by the mere circumstance of their improving or acquiring higher qualifications in the course of their service. The rigour of the restriction was relaxed in some measure. Paragraph 3 said further: "However, in order to avoid discrimination between teachers who have already been allowed higher scales of pay on account of having improved their qualifications and those who have not yet been allowed this benefit even though they also possess higher qualifications it is decided that all teachers in the Education Department who have 887 improved their qualifications before the issue of this letter may be allowed the benefit of higher scale of on the basis of their qualifications. " The benefit was not extended to those who were appointed or who had improved their qualifications after the issue of that Circular letter. The teachers continued to agitate for a more generous dispensation. The State Government then issued Circular letter. No. 8937 5ED.1179/2659 dated September 20, 1979. which declared: "The implementation of the decision contained in Finance Department Circular letter No. 9/9/79 FR (2)/143 dated February 19, 1979 to grant higher pay scales to the teachers on the basis of higher qualifications was kept pending for want of clarification on certain points from the Finance Department which has now become available and is reproduced below: 1. The higher scale may be allocated from the date of passing the respective higher examination by the concerned teacher where this has already been done. However, actual payment at enhanced rates should commence from 12 2.79 and the payment of arrears accruing from the date of passing the examination till 13.2.1979 be restricted to the maximum for 38 months. The ben fit of the higher scale may be allowed from the date a particular teacher is appointed on regular basis or the date of passing the higher examination, which ever is later, but the payment of arrears as a result of grant of such benefit should be restricted to a period of 38 months only, as already mentioned above. The teachers placed in the higher scale can only be regularly adjusted when corresponding posts in the higher scale become available; in that case such teachers may continue to enjoy the higher scale as a personal measure till they are adjusted against regular posts as and when the same become available. " It was clarified that the contemplated benefit was confined to 888 the categories of teachers mentioned in the Circular letter No. 5058 FR II 57/5600 dated July 23, 1957. The appellants claim the benefit of paragraph 2 of the Circular letter dated July 29, 1967, and therefore no reliance can be placed by them on the Circular letters dated February 19, 1979 and September 20, 1979, which relate merely to the scheme embodied in the Circular letter dated July 23, 1957. The appellants contend that on the principle of "equal pay for equal work", affirmed by this Court in Randhir Singh vs Union of India & Ors. they are entitled to the grades mentioned in paragraph 2 of the Circular letter dated July 29, 1967. It is urged that like those Masters or Mistresses who have been given that benefit they have acquired Post graduate qualifications and are doing the same kind of work. As has been explained earlier, the grades specified in paragraph 2 of the Circular letter dated July 29, 1967 are applicable only to those who specifically hold the posts of Lecturer. There are a limited number of such posts, and appointment to them is strictly subject to the conditions detailed in paragraph 2 of the Circular letter. In the result the appeals fail and are dismissed, but in the circumstances of the case there is no order as to costs. N.V.K. Appeals dismissed.

The appellant imported some stainless steel plates at concessional rate of import duty under a notification which provided : (i) that the importer should import the goods for the manufacture of all or any of the articles specified in that notification; (ii) that the articles so manufactured had to be sold to industrial units for their use; (iii) that in case of violation of any one of the conditions above mentioned, the importer was liable to pay, in respect of such quantity of goods as is not proved to have been utilised as per the notification, an amount equal to the difference between the duty leviable on such quantity but for the exemption contained in the notification and that already paid at the time of importation. The appellant submitted a certificate that the goods imported by him under the notification had been consumed and/or utilised as per the notification. But the Assistant Collector of Customs rejected the said certificate and held that the appellant was liable to pay the deficient duty in respect of the goods which had been sold to hospitals/nursing homes since they were not "industrial units" within the meaning of the . The Collector of Customs (Appeals) confirmed the order in appeal. The revision petition of the appellant before the Customs, Excise and Gold (Control) Tribunal, also failed. The appellant contended before this Court that the word 'industrial units ' contained in the notification should be given the same meaning as is assigned to the word 'industry ' in the Industrial Dispute Act, 1947. Dismissing the appeal, ^ HELD: (1) The expression 'industry ' has many meanings. It means 'skill ', 'ingenuity ', 'dexterity ', 'diligence ', 'systematic work or labour ', 'habitual employment in the productive arts ', 'manufacturing establishment etc. While construing a word which occurs in a statute or a statutory instrument in the 1147 absence of any definition in that very document it must be given the same meaning which it receives in ordinary parlance or understood in the sense in which people conversant with the subject matter of the statute or statutory instrument understand it. It is hazardous to interpret a word in a accordance with its definition in another statute or statutory instrument and more so when such statute or statutory instrument is not dealing with any cognate subject. [1149 H; 1150 A B] Craies on statute Law [6th Edn.] p. 164 referred to. (2) 'Industry ' in the wide sense of the term would be capable of comprising three different aspects: (1) raw materials which are an integral part of the industrial process, (2) the process of manufacture or production, and (3) the distribution of the products of the industry. An analysis of Entry 24 and 27 of List II, Entry 52 of List I and Entry 33 of List III of the Constitution shows that 'industry ' ordinarily means the process of manufacture or production. [1151 E F] Sh. Tika Ramji & Ors. vs The State of Uttar Pradesh & Ors. ; at p. 420 followed. (3) It is true that in the Bangalore Water Supply & Sewerage Board, etc. vs R. Rajappa & Ors. [1978]3 SCR 207 this Court has held that hospitals would also come within the definition of the expression 'industry ' given in the Industrial Dispute Act, 1947. But that definition cannot be used for interpreting the word 'industry ' in a notification granting exemption from customs duty under the . When the word to be construed is used in a taxing statute or a notification issued thereunder it should be understood in its commercial sense. [1151 B C] (4) The new definition given to the word 'industry ' by Parliament in the Industrial Disputes (Amendment) Act, 1982 (46 of 1982) also specifically excludes 'hospitals or dispensaries ' from the category of 'industry '. It shows that the meaning given to the expression 'industry ' in the cannot be depended upon while construing other statutes or statutory instruments and it should be confined to the . Therefore, the word 'industry ' means only the place where the process of manufacture or production of goods is carried on and it cannot in any event include 'hospitals ', dispensaries or nursing homes. [1151 G H; 1152 A B]

Criminal Appeal No. 449 of 1989. 'From the Judgment and Order dated 7.12.1988 of the Delhi High 66 Court in Cr. Rev. No. 170 of 1987. WITH Special Leave Petition (Crl.) No. 55 of 1988. From the Judgment and Order dated 7.12. 1988 of the Delhi High Court in Crl. (M) No. 1451 of 1987. A.K. Sen, Kapil Sibal, Anil Dev Singh, Harlinder Singh, R.N. Joshi, Ms. Kamini Jaiswal (NP), Mrs. Sushma Suri, A.K. Srivastava and S.C. Agarwala for the appearing parties. The Judgment of the Court was delivered by AHMADI, J. Are the officers of the Department of Revenue Intelligence (DRI) who have been invested with the powers of an officer in charge of a police station under Section 53 of Narcotic Drugs & Psychotropic Substances Act, 1985 (herein after called 'the Act '), "police officers" within the mean ing of Section 25 of the Evidence Act? If yes, is a confes sional statement recorded by such officer in the course of investigation of a person accused of an offence under the said Act, admissible in evidence as against him? These are the questions which we are called upon to answer in these appeals by special leave. These are the facts, briefly stated. A motor truck DEL 3 124 was intercepted on July 12, 1986 near Calcutta by the DRI officials. On search a large quantity of hashish weigh ing about 743 Kgs. found concealed in machines loaded in the said truck was recovered. The machinery was meant to be exported to Saudi Arabia and the United Kingdom by M/s. Northern Exports (Importers, Exporters and Commission Agents) and M/s. Modern Machinery and Instruments, both of New Delhi. After the hashish was found hidden in the ma chines loaded in the said vehicle, the same was attached under a seizure memo. Joginder Singh and Shivraj Singh, the drivers of the vehicle, were apprehended on the spot by the DRI officials. The disclosure made by these two drivers led to the search of a Farm House at Khasra No.417, Gadaipur, Mehrauli, New Delhi on the 13th/14th and 15th of July, 1986. In the course of the said search hashish weighing about 976 Kgs. was recovered from the machines lying in the said premises and a further quantity of 365 Kgs. was recovered from Gunny bags which were secreted underground in the 67 out house of the Farm House. The DRI officials learnt in the course of investigation that the said hashish was to be exported through M/s. Lee Muirhead (I) Ltd., and M/s. Shiekh and Pandit, of Calcutta. Mohan Lal Pandit and Tushar Pandit, the partners of the said two firms, respectively, were arrested. One Subhash Narang who was arrested by the DRI officials implicated the appellant Kitpal Mohan Virmani. In the course of investigation the name of the other appellant Raj Kumar Karwal also surfaced. Both these persons made confessional statements to the DRI officials in the course of investigation. On the conclusion of the investigation a complaint was lodged against the said two persons under Sections 21, 23, 29 and 30 of the Act and Section 135A of the . The appellants now stand committed to the Court of Sessions for trial. On the appellants applying for enlarge ment on bail under Section 439 of the Code of Criminal Procedure, 1973 ( 'the Code ' hereinafter), the self incrimi nating statements made by the appellants to the DRI offi cials were used against them by the prosecution to establish a prima facie case and to prevent their enlargement on bail. The appellants argued that the said statements were not admissible in evidence in view of Section 25 of the Evidence Act which provides that no confession made to a police officer shall be proved as against a person accused of any offence. The question which arose for consideration was whether DRI officials invested with powers under Section 53 of the Act could be said to be "police officers" within the meaning of Section 25, Evidence Act, so as to place the confessional statements recorded by them beyond the reach of the prosecution. The learned Single Judge of the Delhi High Court before whom the bail applications came up for hearing felt that the question of admissibility of the confessional statement was of vital and far reaching importance and since it was likely to ' arise in a number of such cases it was desirable that it be answered by a larger bench. According ly, the question was referred to a Division Bench which concluded that the officials of the DRI invested with powers under Section 53 of the Act do not possess any of the at tributes of an officer in charge of a police station con ducting an investigation under Chapter XII of the Code. The High Court held that a confessional or self incriminating statement made by a person accused of having committed a crime under the Act to an officer invested with the power of investigation under Section 53 of the Act was not hit by Section 25 of the Evidence Act. After so answering the question, the learned Judges constituting the Division Bench sent back the matter for disposal in accordance with law to the learned Single Judge. It is against this conclusion reached by the Division Bench of the High Court that the appellants are before us. 68 Section 25 of the Evidence Act reads as under: "No confession made to a police officer shall be proved as against a person accused of any offence." (Emphasis supplied). Thus a confession made to a police officer cannot be used or tendered in evidence as against a person accused of any offence. Section 26 next provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shah be proved as against such person. Section 27, which is in the nature of an exception to Sections 25 and 26, pro vides that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The restriction on admissibility of a confession of an accused person imposed by Sections 25 and 26 of the Evidence Act, when made to a police officer and not in the immediate presence of a Magistrate, is as a matter of public policy designed to prevent the practice of securing confes sional statements of persons in police custody by means of threats, inducements, torture, coercion, etc. what impelled the introduction of this provision was the overwhelming evidence which disclosed that the powers vested in the police under the Code were often misused and abused by police officers investigating crimes for extorting a confes sional statement from the accused with a view to earning credit for the prompt solution of the crime and/or to secure himself against allegations of supineness or neglect of duty. It was also realised that once a police officer suc ceeds in extorting a confession from the person accused of the commission of the crime by threats, inducements, etc. , the real offender becomes more or less immune from arrest. Therefore, the purpose of the restriction under Section 25 of the Evidence Act, is broadly speaking, two fold, namely, (i) to protect the person accused of a crime from third degree treatment and, more importantly, (ii) to ensure a proper and scientific investigation of the crime with a view to bringing the real culprit to book. It was, therefore, argued by the counsel for the appel lants that the expression "police officer" used in Section 25 must not be read in the narrow sense of only those offi cers belonging to the regular police force but must be construed broadly to include all those who have been invest ed with powers of the police in the matter of investigation of a 69 penal offence. Since Section 25 engrafts a rule of public policy and is designed to protect a person accused of com mission of a crime from third degree treatment or induce ments or fraud, counsel argued, confessional statements obtained by such officers exercising police powers, though not belonging to regular police force, should also be ex cluded from being tendered in evidence against such an accused person. Counsel submitted that since the officers referred to in Section 53 have been invested with all the powers of an officer in charge of a police station for investigation of offences under the Act, they have all the attributes of a police officer investigating a crime under Chapter XII of the Code and would, therefore, fall within the expression "police officer" in Section 25 of the Evi dence Act. To buttress this submission our attention was invited to Section 2 (xxix) of the Act which says that words and expressions used in the Act but not: defined will have the same meaning as is assigned to them in the Code. Since the word 'investigation ' is not defined in the Act, counsel submitted, that we must look to Section 2(h) of the Code which defines the said expression to include all proceedings under the Code for the collection of evidence conducted by a police officer. Section 4(2) of the Code next provides that all offences under any other law, i.e., other than the Indian Penal Code, shall be investigated, inquired into, tried, and otherwise dealt with according to the same provi sions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such of fences. It was argued that since the Act does not regulate the manner of investigation, the investigation must be made in accordance with the provisions in that behalf contained in Chapter XII of the Code; it must, therefore, be assumed that the officer investigating the crime under the Act is a "police officer", properly so called, and any confessional statement made to such an officer must be rendered inadmis sible in evidence when the maker thereof is accused of having committed an offence. To appreciate the submissions made by counsel for the appellants it is necessary to under stand the scheme of the Act. We may at once examine the scheme of the Act. Before the enactment of the Act, statutory control over narcotic drugs was exercised through certain State and Central enactments, principally through the Opium Act, 1856, the Opium Act. 1878, the Dangerous Drugs Act, 1930, etc. However, with the increase in drug abuse and illicit drug traffic certain deficiencies in the existing laws surfaced which made it necessary for Parliament to enact a comprehensive legisla tion sufficiently stringent to combat the challenge posed by drug traffickers. India had participated in the second International Opium 70 Conference held at Geneva in 1925 which adopted the conven tion relating to dangerous drugs. To give effect to the obligations undertaken by the Government of India by signing and ratifying the said convention, the Dangerous Drugs Act, 1930 came to be enacted to vest in the Central Government the control over certain operations concerning dangerous drugs. Article 25 of the Universal Declaration of Human Rights, 1948, and Article 12 of the International Covenant on Economical, Social and Cultural Rights, 1966, reflect the concern of the international community for the protection of the individual 's right to the enjoyment of the highest attainable standards of physical and mental health. The other International Conventions which prompted the legisla tion are set out in Section 2(ix) of the Act. Besides, one of the primary duties of the Government under our Constitu tion is improvement of public health. inter alia, by prohib iting the consumption of intoxicating drinks and drugs injurious to health. The Act was, therefore, enacted, as is evident from its Preamble, inter alia, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and to provide for deterrent punishment, including the forfei ture of property derived from or used in illicit traffic of such drugs and substances. The Act is divided into VI Chapters accommodating 83 Sections. Chapter I contains the short title of the Act. definitions of various terms and expressions used therein and provisions enabling addition to and omission from the list of psychotropic substances. Chapter II entitled 'au thorities & officers ' empowers the Central as well as the State Government to make appointments of certain officers. for the purposes of the Act. The newly added Chapter IIA provides for the Constitution of a national fund for control of drug abuse. Provision for the prohibition, con trol and regulation on cultivation, production, manufacture, etc., of any narcotic drug or psychotropic substance is to be found in Chapter III. Chapter IV defines the offences punishable under the Act and prescribes the penalties therefore. Needless to say that the punishments prescribed are very severe. In some cases the minimum punishment is 10 years with fine extending to Rs.2 lacs and above. By a recent amendment death penalty is prescribed for certain offences committed by persons after a previous conviction. Provision for rebuttable presumption of mensrea culpable mental state is also made under Section 35 and Special Courts are envisaged by Sections 36 and 36A for the trial of offences punishable under the Act. Every offence punishable under the Act is made cognizable by virtue of Section 37. , notwithstanding the provisions of the Code. Then comes Chapter V which outlines the proce 71 dure to be followed by the officers appointed for the imple mentation of the various provisions of the Act. Sub section (1) of Section 51 empowers a Metropolitan Magistrate or a Magistrate of the First Class or a Magistrate of the Second Class, specially empowered, to issue a warrant for the arrest of any person suspected of having committed any offence punishable under the provisions of Chapter IV of the Act and for the search of any premises, conveyance or place in which such person is suspected of having kept or con cealed any narcotic drug or psychotropic substance. Sections 41(2), 42, 43, and 44 confer on officers named under Act the powers of arrest, search and seizure without any order or warrant from the concerned Magistrate. We will refer to these provisions in some detail when we discuss the impact thereof hereafter. Power to stop, rummage and search any conveyance or goods carried in any conveyance or on any animal is con ferred by Section 49. Section 51 provides that all warrants issued and arrests, searches and seizures made shall be governed by the provisions of the Code unless such provi sions are not consistent with the provisions of the Act. Next comes Section 53 which we consider proper to repro duce at this stage. It reads as under: "Section 53: Power to invest officers of certain departments with powers of an officer in charge of a police station. (1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or Border Security Force or any class of such officers with the powers of an officer in charge of a police station for the investigation of the offences under this Act. (2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under this Act." Section 53A, inserted by Act 2 of 1989, makes a statement made and signed by a person before any officer empowered under Section 53 for 72 investigation of offences, during the course of such inves tigation, relevant in certain circumstances e.g., when the maker of the statement is dead or cannot be traced or is incapable of giving evidence or is kept away by the opposite party or whose presence cannot be secured without delay or when he is examined as a witness in the case. Section 54 permits raising of a rebuttable presumption against an accused in a trial for any offence under the Act to the extent permitted by clauses (a) to (d) thereof. Section 55 enjoins upon an officer in charge of a police station to take charge of and keep in safe custody any article seized under the Act and made over to him. Section 57 enjoins upon the officer making an arrest or effecting seizure under the Act to make a full report thereof to his immediate superior within 48 hours. Section 58 provides the punishment for vexatious entry, search, seizure or arrest. Section 67 empowers an authorised officer to call for information or require any person to produce or deliver any document or thing useful or relevant to the enquiry or examine any person acquainted with the facts and circumstances of the case. The newly added Chapter VA deals with forfeiture of property derived from and used in illicit traffic of drugs, etc. The last Chapter VI contains miscellaneous provisions. The scheme of the Act clearly shows that the Central Government is charged with the duty to take all such meas ures as it deems necessary or expedient for preventing and combating the abuse of narcotic drugs (Section 2(xiv) and psychotropic substances (Section 2(xxiii) and the menance of illicit traffic (Section 2(viiia) therein As pointed out earlier Chapter IV defines the offences and prescribes the punishments for violating the provisions of the Act. We must immediately concede that the punishments prescribed for the various offences under the Act are very severe e.g., Sec tions 21 and 23 prescribe the punishment of rigorous impris onment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees, Section 29 which makes abet ment an offence prescribes the punishment provided for the offence abetted while Section 30 prescribes the punishment which is one half of the punishment and fine for the princi pal offence. In addition thereto certain presumptions, albeit rebuttable, are permitted to be raised against the accused. Counsel for the appellants, therefore, argued that when such extensive powers are conferred on the officers appointed under the Act and the consequences are so drastic, it is desirable that the protection of Section 25, Evidence Act, should be extended to persons accused of the commission of any crime punish 73 able under the Act. In this connection our attention was drawn to the observations of this Court in Balbir Singh vs State of Haryana, J.T. 10 wherein it is empha sised that when drastic provisions are made by a statute the duty of care on the authorities investigating the crime under such law is greater and the investigation must not only be thorough but also of a very high order. We, there fore, agree that as Section 25. Evidence Act, engrafts a wholesome protection it must not be construed in a narrow and technical sense but must be understood in a broad and popular sense. But at the same time it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred within the category of police officers. See The State of Punjab vs Barkat Ram; , at 347 and Raja Ram Jaiswal vs State of Bihar; , at 761. This view has been reiterated in subsequent cases also. The question then is whether the expression "police officer", even if liberally construed, would take in its fold officers of other departments including the DRI invest ed with powers under Section 53 of the Act. According to the view taken by the Bombay High Court in Sheikh Ahmed vs Emperor, Bombay 78 they perhaps would, but not if the view expressed by the Patna High Court in Radha Kishan Marwari vs King Emperor, [933] I.L.R. 12 Patna 46 prevails. These two lines of thought have been the subject matter of scrutiny by this Court in a few subsequent cases. We will presently refer to them. In the case of Barkat Ram this Court was called upon to consider whether Customs Officers to whom confessional statements were made could be said to be police officers within the meaning of Section 25, Evidence Act. On behalf of the prosecution it was argued that the mere tact that cer tain powers of arrest, search, seizure and recording of evidence have been conferred on such officers, where contra vention of the provisions of the statute is complained of, is not sufficient to make them police officers under Section 25 of the Evidence Act. The respondents on the other hand contended that officers on whom such powers are conferred are in fact police officers, no matter by what name they are called. This Court, by majority, pointed out that the pri mary function of the police under the , is prevention and detection of crime while the Customs Officers are mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties, i.e., they are more concerned with the goods and customs duty, than with the offender. After referring to the provisions of the various statutes including Section 5(2) of the Old Code (now Section 4(2). This Court held at pages 364 365 as under: 74 "The foregoing consideration of the case law and the statu tory provisions yields the following results: The term 'police officer ' is not defined in the Evidence Act, or, as a matter of fact, in any other contemporaneous or subsequent enactment. The question, therefore, fails to be decided on a fair construction of the provisions of section 25 of the Evidence Act, having regard to the history of the legislation and the meaning attributed to that term in and about the time when section 25 of the Evidence Act came to be inserted therein. If a literal meaning is given to the term 'police officer ' indi cating thereby an officer designated as police officer, it will lead to anomalous results. An officer designated as a police officer, even though he does not discharge the well understood police functions, will be hit by section 25 of the Evidence Act, whereas an officer not so designated but who has all the powers of a police officer would not be hit by that section; with the result, the object of the section would be defeated. The intermediate position, namely, that an officer can be a police officer only if powers and duties pertaining to an officer in charge of a police station within the meaning of the Code of Criminal Procedure are entrusted to him, would also lead to an equally anomalous position, for, it would exclude from its operation a case of an officer on whom specific powers and functions are con ferred under specific statutes without reference to the Code of Criminal Procedure does not define a 'police officer ' and section 5(2) thereof makes the procedure prescribed by the Code subject to the procedure that may be prescribed by any specific Act. This construction would make the provisions of section 25 of the Evidence Act otiose in respect of officers on whom specific and incontrovertible police powers are con ferred. But the third position would not only carry out the intention of the Legislature, but would also make the sec tion purposive and useful without doing any violence to the language of the section. A police officer within the meaning of section 25 of the Evidence Act may be defined thus: An offi cer, by whatever designation he is called, on whom a statute substantially confers the powers and imposes the duties of the police is a police officer within the meaning of section 25 of the Evidence Act. " In the final analysis this Court held that the duties of the Customs Officer were substantially different from those of the police and 75 merely because they possessed certain powers having similar ity with those of police officers, cannot make them police officers within the meaning of Section 25 of the Evidence Act. In the case of Raja Ram Jaiswal, the undisputed facts were that a motor car was intercepted by an Excise Inspector and searched. On search five bundles of non duty paid Napali charas were found and seized. The Excise Inspector recorded the statements of all persons found in the car including the appellant. The admissibility of the appellant 's statement, was challenged on the ground that it was hit by Section 25, Evidence Act, This Court, by majority, (Raghubar Dayal, J.) dissenting, laid down the test in the following words: "The test for determining whether such a person is a 'police officer ' for the purpose of section 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or substantial relationship with the prohibition enacted by section 25 that is, the recording of a confession. In our words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys" Applying this test this Court concluded that the Excise Inspector, who recorded the appellant 's confessional state ment was in fact a police officer, properly so called, within the meaning of that expression in Section 25, Evi dence Act. Both these decisions came up for consideration before a bench consisting of five learned Judges of this Court in Badku Joti Savant vs State of Mysore, ; In that case the appellant was found in possession of con traband gold when his house was raided and searched in the presence of panches on November 27, 1960. The appellant was arrested on November 30, 1960 and his statement was reduced to writing and his signature was obtained thereon. In the course of his statement he admitted knowledge about the existence of the contraband goods. Two questions arose for determination, the first related to the interpretation of Section 167(81) of the Sea and the second touched the point of admissibility of the confessional 76 statement in view of Section 25, Evidence Act. This Court distinguished Raja Ram Jaiswal 's case and held that the facts of the case on hand were more in accord with the case of Barkat Ram. Accordingly, it held that the Central Excise Officer was not a police officer under Section 25 of the Evidence Act. This Court while dealing with the submission based on Section 21(2) of the Central Excise & Salt Act, 1944, observed that even though this sub section confers on the Central Excise Officer the same powers as an officer in charge of a police station investigating a cog nizable case "It does not, however, appear that a Central Excise Officer under the Act has power to submit a charge sheet under Section 173 of the Code . ". Thus the ratio of the decision appears to be that even if an officer is invested under any special law with powers analogous to those exercised by police officer in charge of a police station investigating a cognizable offence, he does not thereby become a police officer under Section 25, Evidence Act, unless he has the power to lodge a report under Section 173 of the Code. In Ramesh Chandra Mehta vs State of West Bengal, a bench of five learned Judges held: " . the test for determining whether an officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua inves tigation of an offence, including the power to submit a report, under section 173 of the Code of Criminal, Procedure. It is not claimed that a Customs Officer exercising power to make an enquiry may submit a report under section 173 of the Code of Criminal Procedure". In Illias vs Collector of Customs, Madras, ; the ' same bench was required to consider if Customs Officials under the , were police officers within the meaning of Section 25. Evidence Act. This Court referred to all the cases discussed hereinbefore and finally approved the test laid down in Badku Joti Savant and reiterated in Ramesh Chandra Mehta. In State of U. P. vs Durga Prasad, ; , the question for consideration was whether an enquiry under Section 8(1) of the Railway Property (Unlawful Posssession) Act, 1966, is an investigation under the Code; if yes, whether statements recorded in the course of investigation are hit by Section 162 of the Code and if such statements are confessional in nature can they be admitted in evidence in 77 view of Section 25, Evidence Act. This Court observed at pages 886887 as under: "The fight and duty of an investigating officer to file a police report or a charge sheet on the conclusion of inves tigation is the hallmark of an investigation under the Code. Section 173(1)(a) of the Code provides that as soon as the investigation is completed the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. The officer conducting an inquiry under section 8(1) cannot initiate court proceedings by filing a police report as is evident from the two provisos to section 8(2) of the Act. On the conclusion of an enquiry under sec tion 8(1), therefore, if the officer of the Force is of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he must file a complaint under section 190(1)(a) of the Code in order that the Magistrate concerned may take cognizance of the offence. Thus an officer conducting an inquiry under section 8(1) of the Act does not possess all the attributes of an officer incharge of a police station investigating a case under Chapter XIV of the Code. He possesses but a part of those attributes limited to the purpose of holding the inquiry". In a more recent case, Balkishan A. Devidayal etc. vs State of Maharashtra etc. ; , the question which arose for determination was whether an Inspector of the Railway Protection Force enquiring into an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966, can be said to be a "police officer" under Section 25, Evidence Act. This Court, after a review of the case law, concluded at page 201 as under: "In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investi gation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a chargesheet before the Magistrate concerned under Section 173 of 78 the Code, which has been held to be the clinching attribute of an investigating 'police officer '. Thus, judged by the test laid down in Badku Jyoti Savant 's which has been con sistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a 'police officer ' within the meaning of Section 25 of the Evidence Act . . . " Keeping in view the law laid down by this Court in the decisions referred to above, we may now proceed to apply the test in the context of the provisions of the Act. We have noticed that Section 37 makes every offence punishable under the Act cognizable notwithstanding anything contained in the Code. Section 41(1) empowers a Magistrate to issue a warrant for the arrest of any person suspected of having committed any offence under Chapter IV, or for the search of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance or any document or other article is kept or concealed. Section 41(2) empowers certain gazetted officers of central excise, narcotics, customs, revenue intelligence, etc., of the Central Government or the Border Security Force, or any such officer of the revenue, excise, police, drug control, or other departments of the State Governments empowered by general or special orders in this behalf to issue an author isation for the arrest of any person believed to have com mitted an offence or for the search of any building, convey ance or place whether by day or by night in which the of fending drug or substance or article is kept or concealed. Section 42 enables certain officers duly empowered in this behalf by the Central or the State Governments to enter into and search any building, conveyance or enclosed place be tween sunrise and sunset without any warrant or authorisa tion, if there is reason to believe from personal knowledge or information given any person and reduced to writing, that any narcotic drug or psychotropic substance inrespect of which such an offence has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed therein and seize the same. The proviso requires that the concerned officer must record the grounds of his belief before exercising power under the said provision. Sub section (2) of section 42 enjoins upon an officer taking down the information or recording grounds for his belief to forward a copy thereof to his immediate superior. Section 43 confers on any officer of any of the departments mentioned in Section 42, power to seize in any public place or in transit, any narcotic drug or psychotropic substance, in respect of which he has reason to believe an offence punishable under 79 Chapter IV has been committed, and along therewith any animal or conveyance or article liable to confiscation under the Act and any document or other article which furnishes evidence of the commission of the offence relating to such drug or substance. Power is also conferred on such an offi cer to detain and search any person whom he has reason to believe to have committed an offence under Chapter IV and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him unlaw ful, arrest him, and any other person in his company. By Section 44 the provisions of Sections 41, 42 and 43 are made applicable in relation to offences concerning coca plant, opium poppy or cannabis plant. Where it is not practicable to seize any goods (including standing crop) liable to confiscation, any officer duly authorised under Section 42 is empowered to serve on the owner or person in possession of the goods, an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer. Section 48 confers on the Magis trate or any officer of the gazetted rank empowered under Section 42, power of attachment of crop illegally cultivat ed. Section 49 empowers any officer authorised under Section 42, if he has reason to suspect that any animal or convey ance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance in respect of which he suspects that any provision of the Act has been. or is being, or is about to be contravened, to stop such animal or conveyance and rummage and search the conveyance or part thereof; examine and search any goods on the animal or in the conveyance and use all lawful means for stopping it and where such means fail, the animal or conveyance may be fired upon. Section 50 enjoins upon the officer who is about to search any person, if such person so requires, to take him without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. Then comes Section 51 which says that the provisions of the Code shall apply, insofar as they are not inconsistent with the provisions of the Act, to all warrants issued and arrests, searches and seizures made under the Act. On a plain reading of the section it is clear that if there is any inconsistency between the provisions of the Act and the Code, the former will prevail. Section 52 deals with the disposal of persons arrested and articles seized under Sections 41, 42, 43 or 44 of the Act. It en joins upon the officer arresting a person to inform him of the grounds for his arrest. It further provides that every person arrested and article seized under warrant issued under sub section (1) of Section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. Where, however, the arrest or seizure is effected by virtue of Sections 41(2), 42, 43 or 44 the Section 80 enjoins upon the officer to forward the person arrested and the article seized to the officer in charge of the nearest police station or the officer empowered to investigate under Section 53 of the Act. Special provision is made in Section 52A in regard to the disposal of seized narcotic drugs and psychotropic substances. Then comes Section 53 which we have extracted earlier. Section 55 requires an officer incharge of a police station to take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under the Act within the local area of that police station and which may be delivered to him. Section 57 en joins upon any officer making an arrest or effecting seizure under the Act to make a full report of all the particulars of such arrest or seizure to his immediate official superior within 48 hours next after such arrest or seizure. These provisions found in Chapter V of the Act show that there is nothing in the Act to indicate that all the powers under Chapter XII of the Code, including the power to file a report under Section 173 of the Code have been expressly conferred on officers who are invested with the powers of an officer in charge of a police station under Section 53, for the purpose of investigation of offences under the Act. The Act was enacted for the control and regulation of operations relating to narcotic drugs and psychotropic substances. Under Sections 41, 42, 43, 44 and 49 of the Act certain powers of arrest, search and seizure have been conferred on certain officers of different departments. If the arrest or seizure is made pursuant to a warrant issued under Section 41(1), the person arrested or the article seized has to be forwarded to the Magistrate with despatch. If the arrest or seizure is made under Sections 41(2), 42, 43 or 44 the person arrested or the article seized has to be forwarded to the officer in charge of the nearest police station or the officer empowered under Section 53 of the Act. Special procedure has been prescribed for the disposal of narcotic drugs and psychotropic substances having regard to the factors set out in Section 52A. The role of the officers effecting arrest or seizure, except in the case of a police officer, ends with the disposal of the person arrested and the article seized in the manner provided by Section 52 and 52A of the Act. Section 57 obliges the offi cer making the arrest or seizure to report the same to his superior within 48 hours. These powers are more or less similar to the powers conferred on Customs Officers under the . For the offences under the Act, the investigation is entrusted to officers in whom powers of an officer in charge of a police station are vested by a notification issued under Section 53 of the Act by the 81 concerned Government. Thus a special investigating agency is created to investigate the commission of offences under the Act. There is no doubt that the Act creates new offences, empowers officers of certain departments to effect arrest, search and seizure, outlines the procedure therefore, pro vides for a special machinery to investigate these offences and provides for the constitution of Special Courts for the trial of offences under the Act, notwithstanding anything contained in the Code. But, argued learned counsel for the appellants, the officers empowered to investigate under Section 53 of the Act must of necessity follow the procedure for investigation under Chapter XII of the Code, since the Act does not lay down its own procedure for investigation. By virtue of Section 51 of the Act, the provisions of the Code would apply since there is no provision in the Act which runs counter to the provisions of the Code. It was said that since the term 'investigation ' is not defined by the Act, the definition thereof found in Section 2(h) of the Code must be invoked in view of Section 2(xxix) of the Act which in terms states that words and expressions used in the Act but not defined will carry the meaning assigned of them, if defined in the Code. Section 2(h) of the Code, which defines 'investigation ' by an inclusive definition means all proceedings under the Code for collection of evidence con ducted by a police officer or by any person authorised by a magistrate in this behalf. Under Section 4(2) of the Code all offences under any other law have to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. However, according to Section 5, nothing contained in the Code shall, unless otherwise provided, affect any special or local law or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to investigate is to be found in Chapter XII of the Code which begins with Section 154 and ends with Section 176. The scheme of this Chapter is that the law can be set in motion in regard to a cognizable offence on re ceipt of information, written or oral, by the officer in charge of a police station. Once such information is re ceived and registered, Section 156 empowers any officer incharge of the police station to investigate the same without any magisterial order. The investigation which so commences must be concluded, without unnecessary delay, by the submission of a report under Section 173 of the Code to the concerned Magistrate in the prescribed form. Any person on whom power to investigate under Chapter XII is conferred can be said to be a 'police officer ', no matter by what name he is called. The nomenclature is not important, the content of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate 82 into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge sheet under Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, includ ing the power to submit a report under Section 173, he cannot be described to be a 'police officer ' under Section 25, Evidence Act. Counsel for the appellants, however, argued that since the Act does not prescribe the procedure for investigation, the officers invested with power under Section 53 of the Act must necessarily resort to the proce dure under Chapter XII of the Code which would require them to culminate the investigation by submitting a report under Section 173 of the Code. Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code. But the issue is placed beyond the pale of doubt by sub section (1) of Section 36A of the Act which begins with a non ob stante clause notwithstanding anything contained in the Code and proceeds to say in clause (d) as under: "36 A(d): a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Gov ernment or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial." This clause makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI, the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government. Needless to say that such a complaint would have to be under Section 190 of the Code. This clause, in our view, clinches the matter. We must, therefore, negative the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercise 'all ' the powers under Chapter XII of the Code, including the power to submit a report or charge sheet under Section 173 of the Code. That being so, the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier. 83 In view of the above discussion we are of the opinion that the view taken by the Delhi High Court in the impugned Judgment, which is in accord with the view taken by the Allahabad High Court in Mahesh vs Union of India, and the Gujarat High Court in Mangal Singh vs The State of Gujarat, , is unassailable and must be upheld. We, therefore, see no merit in the appeal as well as the special leave petition and hereby dismiss them. R.S.S. Appeal and Petition dismissed.

Article 371 D brought into the Constitution by Thirty second Amendment Act, 1973, with effect from July 1, 1974 empowered the President in respect of the State of Andhra Pradesh by an Order (1) to require the State Government to organise any class or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot the persons holding such posts to the local cadres, and (2) to specify any part or parts of the State which shall be regarded as the local area for direct re cruitment to posts in any local cadre. In exercise of the power so conferred the President issued the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 on October 18, 1975. Para 3(1) of the Order empowered the State Government to organise the local cadre within a period of twelve months. The term 'local cadre ' was defined in para 2(1)(e) to mean any local cadre of posts under the State Government organised in pursuance of para 3, or con stituted otherwise, for any part of the State. The proviso added to para 3(1) subsequently and published through G.O. Ms. No. 34 dated January 24, 1981, empowered the President, notwithstanding the expiration of the period of twelve months, to require the State Government, whenever he consid ered it expedient so to do, to organise local cadres for different parts of the State. Para 3(7) permitted the State Government to organise or to continue more than one cadre in respect of any category of posts in any department for any part of the State. Para 4 provided mode of allotment of employees to local cadres. Para 562 5(1) declared that each part of the State for which a local cadre has been organised, in respect of any category of posts, shall be a separate unit for purposes of recruitment, appointment, discharge, seniority, promotion and transfer. In the table in the schedule thereto the State was divided into seven zones and zone V consisted of the revenue dis tricts of Adilabad, Karimnagar, Warangal and Khammam. In structions were issued for implementation of the Presiden tial Order through G.O.Ms. No. 728 dated November 1, 1975 in organising the local cadres. In pursuance of para 3(1) of the Order the State Govern ment in Commercial Taxes Department issued order G.O.Ms. No. 581 dated May 24, 1976 organising zones and the Warangal Zone consisted of revenue districts of Adilabad, Karimnagar, Warangal and Khammam, which was co terminus with zone V of the Presidential Order. The Junior Assistant in each revenue district in Warangal zone was a separate district post, but for the purpose of promotion to the post of Senior Assist ants and Assistant Commercial Taxes Officers, which were zonal posts, common seniority of the Junior Assistants and Senior Assistants working in all the four revenue districts was being maintained and promotion made in accordance with the rules. Subsequently, however, the State Government created separate divisions within the zones in the Commercial Taxes Department through G.O.Ms. No. 1900 dated December 22, 1981 carving out Adilabad and Karimnagar as Adilabad Division and Warangal and Khammam as Warangal Division. Options were called for and the employees allotted in G.O.Ms. No. 1648 dated November 22, 1982 to the respective divisions. Agrieved by the said order respondent Nos. 4 and 5 filed a petition before the State Administrative Tribunal contend ing that for promotion from Senior Assistant to Assistant Commercial Taxes Officer zonal seniority of Warangal local area comprising of Warangal, Khammam, Karimnagar and Adila bad was the criteria, that the Adilabad division consisting of Adilabad and Karimnagar districts of Commercial Taxes Department could not be treated to be a zone, and that the divisional seniority prepared by the department was bad in law. The Tribunal held that the zonal seniority was the criteria for purposes of promotion, and allowed the peti tion. The State Government in exercise of its power under cl. (5) of article 371 D annulled that order. Thereupon, respondent Nos. 4 and 5 filed a writ petition under article 32 of the Constitution wherein this Court 563 declared cl. (5) of article 371 D as ultra vires. Left with no alternative the State filed special leave petition against the original order of the Tribunal, which was dismissed. Subsequently, the appellants beneficiaries of G.O.Ms. No. 1648 of 1982, filed representative petition before the Tribunal, which was dismissed. In the appeal by special leave it was contended for them that the State Government continues to have its inherent power to organise local cadres to meet the exigencies of administrative needs, as there was no prohibition in that regard in the Order, and that the phrase 'or constituted otherwise ' engrafted in the definition of 'local cadre ' in para 2(1)(e) read with para 3(7) gave ample power to the State Government to create a zone within the Warangal zone for the purpose of recruitment, seniority and promotion in the Commercial Taxes Department. Dismissing the appeal, the Court, HELD: 1. The action taken by the State Government in issuing G.O.Ms. No. 1648 dated November 20, 1982 was illegal and invalid contravening the proviso to para 3(1) and para 4 of the Presidential Order. [573C] 2.1 Once the State Government had organised the Commer cial Taxes Department by constituting different local cadres and Warangal zone comprising of the four revenue districts, namely, Adilabad, Karimnagar, Khammam and Warangal was declared as local area for local cadres of the Department through G.O.Ms. No. 581 dated May 24, 1976 in exercise of the powers under para 3(1), it ceased to have any power to bifurcate or reorganise a zone within a zone, cadre or cadres therein. [572E G] 2.2 In exercise of the power under the proviso to para 3(1), it is for the President and President alone notwith standing the expiry of the period of twelve months pre scribed in para 3(1), by an order require the State Govern ment whenever he considers it expedient so to do to have the power under para 3(1) exercised. Therefore, the State Gov ernment shall have to place necessary material before the President; the President shall consider that it is expedient to organise any class or classes of posts in the civil services of and class or classes of civil posts under, the State into a further local cadre within the local cadre in the zone already prescribed and to pass an order in that regard requiring the State Government to so organise it. [572G; 573A] 564 2.3 However, for the purpose of efficient administration or convenience, the State Government may create division/divisions within the local area or local cadre. But for the purpose of recruitment, seniority, promotion, dis charge, etc. the local cadre once organised under para 3(1) shall be final and continue to be operative until action is taken under the proviso to para 3(1) of the Order. In the instant case, no order of the President, as provided under the proviso, was made. [573A B] 3. The Presidential Order was made pursuant to the power given under article 371 D, which is a special provision made under the Constitution (Thirtysecond Amendment) Act, 1973 peculiar to the State of Andhra Pradesh. Therefore, the State Government had no inherent power in creating a zone or organising local cadres within the zones except in accord ance with the provisions of the said Order. [573D] 4. The phrase 'or constituted otherwise ' defined in para 2(1)(e) is only related to the power given by the President to the State Government to organise local cadre. Para 3(1) is the source of that power. The said phrase is, therefore, to be understood in the context and purpose which article 371 D and the President Order seek to achieve. The State Govern ment cannot create local cadres at its will. [573E; 575A] Kochuni vs States of Madras & Kerala, ; and Lilavati Bai vs The State of Bombay, ; at 735, distinguished. The power given to the State Government in para 3(7) of the Order is only to organise a separate cadre in respect of any category of posts in any department when more than one cadre in respect of such category exists in each depart ment. So, the State Government may organise one cadre when more than one cadre in respect of different categories of posts exist in a zone under para 3(1) of the Order. For instance, while creating local cadre co terminus with the administrative control of the Dy. Commissioner, Commercial Taxes, local cadre for Senior Assistants may be created. It is also made manifest in Instruction No. 7 and 9(e) of the instructions contained in G.O.Ms. No. 728 dated November 1, 1975. But it is only for the purpose of administrative convenience, not for the purpose of recruitment, seniority or promotion etc., as the case may be. [575C E] Thus, the creation of a division and maintaining sepa rate seniority of Junior Assistants and Senior Assistants in the Commercial Taxes Department for adilabad and Warangal Divisions were illegal, contrary 565 to order issued in G.O.Ms. No. 581 and the Presidential Order. [575F]

Appeal No. 219 of 1962. 384 Appeal from the judgment and decree dated August 31, 1960 of the Patna High Court in Appeal from Original decree No. 7 of 1955. B. Sen, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants. B. R. L. Iyengar, section K. Mehta and K. L. Mehta, for the respondents. April 25. The Judgment of the Court was delivered by GAJENDRAGADKAR J. This appeal arises out of proceedings under the Land Acquisition Act, 1894 (No. 1 of 1894) (hereinafter called 'the Act '). The respondents owned an area of 0.12 acre of land in village Bermo No. 18 in the district of Hazaribagh. This land was required for the construction 'of Aerial Rope way for Bokaro Thermal Power Plant, and so, in order to acquire the said land, a declaration under section 4 of the Act was made on August 9, 1952. The property of the respondents which stands on this plot consists of two buildings, one is the main structure and the other is made up of out houses together with an open space of land in front of these structures. The notification showed that the Government thought it necessary, to acquire a space of 50 fit in width for the electric wire to run over and this included a portion of open space as also the out houses of the respondents. Under the proceedings taken under the relevant provisions of the Act, the Land Acquisition Officer fixed the compensation to be paid to the respondents at Rs. 4,4511516; according to him, the said amount represented a fair and reasonable compensation for the land together with the out houses under acquisition. The respondents were not satisfied with this award, and so, ' they applied for reference under section 18 385 of the Act. One of the grounds taken by the respondents in para I (d) of their petition for reference was that the other lands and buildings contiguous to the land and building acquired which belonged to them had not been acquired, and in consequence, they had to suffer a huge loss; the rope line passes close to the rest of the property, and so, it could not be used for fear of its being dangerous for human habitation. On this basis, the respondents alleged that they were entitled to recover as compensation amount Rs. 21,765/8/ which they had spent on the construction of the principal building. Besides, they urged that the monthly rent of Rs. 160/ which they were receiving from the tenants in respect of the said principal building would also be lost and they were entitled to adequate compensation on that account. In other words, one of the grounds raised by the respondents in their petition was referrable to section 23 (3) of the Act. The Deputy Commissioner of Hazaribagh then proceeded to make the reference as claimed by the respondents. In his letter of reference, he stated that the respondents were claiming additional compensation on the ground that the other lands and buildings contiguous to the land and building acquired which they owned had not been acquired and thereby they had to suffer a huge loss. On reference, the District judge of Hazaribagh heard the matter. It appears that before the District judge, Kundan Singh, respondent No. 1, gave evidence and stated that on October 22, 1952, he had put in an application that the other quarters belonging to him which had not been acquired should also be acquired, because the said quarters were contiguous to the land acquired and had become useless to the respondents. The learned District judge considered the point raised by the respondents and held that since only a narrow 386 strip of land had been left in front of the larger building, it had affected the utility of the said building and the other unacquired land of the respondents, and so, he directed that in addition to the amount of Rs. 4 451/5/6 which had been determined as the amount of compensation by the Land Acquisition Officer, Rs. 1000/ should be paid to the respondents. In his opinion, the amounts determined by the Acquisition Officer for the property actually acquired was quite appropriate and all that was needed to be done was to award an additional amount of Rs. 1,000/ on the ground that the unacquired property was adversely affected by the acquisition in question. The respondents then preferred an appeal before the High Court of Patna under section 54 of the Act. In their appeal, the only ground which they urged was that the rope way having completely spoiled the main building, the Land Acquisition Officer could not acquire the out houses without acquiring the main building. Accordingly, they claimed a declaration that the Land Acquisition Officer should acquire the main building along with the other properties under acqiuisition. When this plea was raised before the High Court, the appellants, the State of Bihar and the Deputy Commissioner, Hazaribagh, contended that it was not open to the respondents to claim a declaration for the acquisition of other properties in their appeal, because the said appeal arose out of a reference under section 18 of the Act and a plea like the one raised by the respondents which could be made under section 49 of the Act, was foreign to the present enquiry. It was also contended that this point had not been taken by the respondents either before the Land Acquisition Officer or before the District judge. These arguments were rejected by the High Court and a direction has been issued by the High Court calling upon the Land Acquisition Officer to takeover the remaining area 387 and the building and assess the compensation thereon in due course according to law. The High Court has ordered that when the said assessment is thus determined, the additional compensation of Rs. 1,000/which has been allowed by the District judge should be deducted and the balance paid to the respondents. It is against this order that the appellants have come to this Court with a certificate issued by the High Court; and the principal question which has been raised before us by Mr. Sen on behalf of the appellants is that the High Court was in error is allowing section 49 to be invoked in the appeal before it. The first point which must be considered in dealing with the appellants ' argument is whether the respondents had made an application to the Land Acquisition Officer under section 49 of the Act as alleged by respondent No. I in his evidence before the District judge. We have already noticed that respondent No. I stated in his evidence that on October 22, 1952 he had put in an application that the other quarters should also be acquired. In other words, his plea was that the said application had been made invoking the provisions of section 49 of the Act after the date of the notification and before the award was made on November 27, 1952. The judgment of the District judge shows that he did not accept this plea, and so, he proceeded to deal with the case on the basis that the respondents were claiming additional compensation either under the third or the fourth clause of section 23 (1) of the Act. If he had held that an application had been made by the respondents under section 49 of the Act before the award was made and they were asking for relief under that provision, he would, undoubtedly, have considered the matter and recorded his conclusion on it. Therefore, it would not be unreasonable to assume that the District judge did not attach any importance to the statement made by respondent No. I that he had put in an application under section 49, or it may be that the 388 respondents merely pressed their claim for additional compensation under section 23 before the learned District judge. When the matter was argued before the High Court, the appellants seriously disputed the allegation of the respondents that an application had been made to the Land Acquisition Officer under section 49. It is true that the statement of respondent No. 1 that he had made such an application was not challenged in cross examination, but it is remarkable that the said statement does not appear to have been pressed before the District judge and when it was attempted to be pressed before the High Court, the application alleged to have been made by respondent No. I was not produced before or shown to the High Court at all. In fact, no such application has been printed in the paper book prepared for this Court in the present appeal. The High Court also does not appear to have made any definite finding that the statement of respondent No. I could be accepted. It has, however, held that the claim made by the respondents when they asked for reference under s.18 showed that they were asking for protection under s.49 of the Act and it is on the basis of the said claim contained in para. I (d) of the respondents ' petition under section 18 of the Act that the High Court came to the conclusion that the respondents had relied upon section 49 before the Land Acquisition Officer. We have already referred to the ground taken by the respondents in para I (d) of their petition and have noticed that the claim made under the said ground was under section 23 of the Act and not at all under section 49; and so, we are not prepared to accept Mr. Iyenger 's argument that the present appeal should be dealt with on the basis that the respondents had made an application to the Land Acquisition Officer under section 49 of the Act before he pronounced his award. By their application for 'reference, the respondents merely claimed additional compensation under section 23(1) and 389 that is how their claim was considered and decided by the learned District Judge. It is in the light of this, finding that we have to determine the question as to whether the High Court could have entertained the respondents ' plea under section 49 in the appeal preferred before it by the respondents against the decision of the District Judge in reference proceedings taken before him under section 18 of the Act. In determining the question about the scope of the enquiry under section 18, it is necessary to consider the relevant provisions of the Act. Section 4 of the Act deals with the publication of a preliminary notification in regard to the acquisition proceedings proposed to be taken. Section 5 A deals with the hearing of objections. Section 6 provides for the declaration that a particular land is required for a public purpose. Section 9 requires notice to be given to the persons interested in the said property. Section 11 prescribes the manner of the enquiry and provides for the making of the award by the Collector. Section 12 lays down that the award, when made, shall be filed in the Collector 's office and shall be final, as therein prescribed ' Section 16 empowers the Collector to take possession of the property acquired, ' and section 18 deals with reference to Court. In dealing with the claim for compensation made by the owner of the property, the Court has to consider the matters specified in section 23. The third clause of section 23 (1) provides that in determining the amount of compensation, the Court shall take into account the damage (if any), sustained by the person interested, at the time of the Collector 's taking possession of the land , by reason of severing such land from his other land and the fourth clause requires the Court to take into account the damage (if any), sustained by the person interested, at the time of the Collector 's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings. 390 Section 18 (1) provides that any person interested who has not accepted the award may, by written application to the Collector,require that the matter be referred by the Collector or the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. ' It is thus clear that the scope of the enquiry under section 18 (1) is specifically indicated by the section itself. The objections which the Court can consider on a reference made to it under section 18 may be either in respect of the measurement of the land, the amount of compensation, the persons to whom it is payable, and the apportionment of the compensation among different persons. In dealing with the ' question about the amount of Compensation, the Court may have to take into account the matters specified in s.23. As was observed by the Privy Council in Pramatha Nath Mullick vs Secretary of State for India (1), the section clearly specifies four different grounds of objection which can be the subject matter of an enquiry in reference proceedings. Therefore, it is very difficult to accede to Mr. Iyengers ' argument that in dealing with the reference proceedings under section 18 (1), the Court can also consider the pleas raised by the owner of the property under section 49 of the Act. It does appear that the owner of property under acquisition may claim additional compensation on the ground that the portion of the property acquired so materially affects the value or the utility of his other property not acquired as to justify a claim for additional compensation under section 23, and if such a claim is made, it would legitimately form the subject matter of an enquiry in a reference under section 18 (1), but if the owner of the property wants to claim 'that the whole of his property should be acquired, and in that connection relies on the provisions of section 49, that cannot be introduced in an enquiry under section 18 (1) (1929) L. R. 57 I. A. 100. 391 such a claim must form the subject matter of different proceedings taken by the owner under section 49 itself. That takes us to section 49. Section 49 reads thus " (1) The Provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired Provided that the owner may, at any time before the Collector has made his award under section 1 1, by notice in writing, withdraw or modify his expressed desire that the whole of such house, manufactory or building shall be so acquired : Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section the Collector shall refer the determination of such question to the Court and shall not take possession of such land until after the question has been determined. In deciding on such a reference the Court shall have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building. (2) If, in the case of any claim under section 23, sub section (1), thirdly, by a person interested, on account of the severing of the land to be acquired from his other land, the (appropriate Government) is of opinion that the claim is unreasonable or excessive, it may, at 392 any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part. (3) In the case last hereinbefore provided for, no fresh declaration or other proceedings under sections 6 to 10, both inclusive, shall be necessary ; but the Collector shall without delay furnish a copy of the order of the (appropriate Government) to the person inter ested, and shall thereafter proceed to make his award under section 11. The provisions of section 49 (1) prescribe, inter alia, a definite prohibition against putting in force any of the provisions of the Act for the purpose of acquiring a part only of any house, if the owner desires that the whole of such house shall be acquired. This prohibition unambiguously indicates that if the owner expresses his desire that the whole of the house should be acquired, Do action can be taken in respect of a part of the house under any provision of the Act, and this suggests that where a part of the house is proposed to be acquired and a notification is issued in that behalf, the owner must make up his mind as to whether he wants to allow the acquisition of a part of his house or not. If he wants to allow the partial acquisition, proceedings would be taken under the relevant provisions of the Act and an award directing the payment of adequate compensation would be made and would be followed by the taking of possession of the property acquired. If, on the other hand, the owner desires that the whole of the house should be acquired, he should indicate his desire to the Land Acquisition officer and all further proceedings under the relevant provisions of the Act must stop. This provision thus seems to suggest that if an objection is intended to be raised to the acquisition of a part of the house, it must be 393 made before an award is made under section 11. In fact, it should be made soon after the initial notification is published under section 4 ; otherwise, if the proceedings under the relevant provisions of the Act are allowed to be taken and an award is made, it would create unnecessary confusion and complications if the owner at that stage indicates that he objects to the acquisition of a part of his house ; at that stage, it would no doubt be open to him to claim adequate compensation in the light of the material provisions of section 23 of the Act, but that is another matter. The first proviso to section 49 (1) also leads to the same conclusion. If the owner has made his objection to the acquisition of a part of his house, it is open to him to withdraw or modify his objection before an award is made under section 11 ; and if he withdraws 'his objection, further proceedings will follow and if he modifies his objection, steps will have to be taken as indicated in the other provisions of section 49. This proviso, therefore, suggests that the objection of the owner to acquisition of a part of his house has to be considered and dealt with before an award is made under section 11. It would be noticed that if an objection is made by the owner under section 49 (1), the Collector may decide to accept the objection and accede to the desire of the owner to acquire the whole of the house. In that case, further proceedings will be taken on the basis that the whole of the house is being acquired. In some cases, the Collector may decide to withdraw acquisition proceedings altogether, because it may be thought not worthwhile to acquire the whole of the house ; in that case again nothing further remains to be done and the notification issued has merely to be withdrawn or cancelled. But cases may arise where the Collector may not accept the claim of the owner that what is being acquired is a part of the house ; in that case, the matter in dispute has to be 394 judicially determined, and that is provided for by the second proviso to section 49 (1). Under this proviso, the Collector is under an obligation to refer the matter to the Court and he shall not take possession of the land under acquisition until the question is determined by the Court. In dealing with this matter, the Court has to have regard to the question as to whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house. Sub section (2) of section 49 seems to contemplate that where land is acquired and it is shown to form part of a house, it would be open to award to the owner of the house additional compensation under the third clause of section 23, and I so, this sub section deals with cases where the claim made by the owner of the house under the third clause of section 23 is excessive or unreasonable, and provides that the appropriate Government may decide to acquire the whole of the land of which the land first sought to be acquired forms a part rather than agree to pay an unreasonable or excessive amount of compensation as claimed by the owner. This provision also emphasises the fact that where land is acquired and it results in the acquisition of a part of the house connected with the land, the owner can make a claim for additional compensation under section 23, or he may require, before the acquisition has taken place, that the whole of the house should be acquired. These are two alternative remedies available to the owner ; if he wants to avail himself of the first remedy under section 23, he may make a claim for additional compensation in that behalf and such a claim would form the subject matter of an enquiry under section 18 ; if, on the other hand, he claims the other alternative remedy provided by section 49 (1), that must form the subject matter of another proceeding which has to be dealt with under section 49 itself. It is true that in cases of dispute, this matter also goes to the same Court for its decision on a 395 reference by the Collector; but though the Court is the same the proceedings taken are different and separate and must be adopted as such. A claim under section 49 which can be properly tried by the Court on a reference made to it by the Collector under the second proviso to section 49 (1), cannot be mixed up with a claim which can be made in reference proceedings sent to the Court under section 18 by the Collector. Section 49 (3) merely dispenses with the necessity of issuing a further fresh declaration or adopting other proceedings under sections 6 to 10 in regard to cases falling under section 49 (2). Thus, it would be seen that the scheme of section 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made, and once such a desire is expressed, the procedure prescribed by section 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under section 18 of the Act. In the present case, the respondents have taken no steps to express their desire that the whole of their house should be acquired, and so, it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District judge on a reference under section 18. That being our view, we do not think necessary to consider the respondents ' contention that what is acquired in the present proceedings attracts the provisions of section 49 (1). It now remains to consider two relevant decisions which were cited before us. In the Secretary of State for India in Council vs Narayanaswamy Chettier (1), the Madras High Court appears to have taken the view that there is nothing in section 49 requiring the claimant to put forward his particular claim, viz., that the whole of his house should be acquired, at any particular stage of the proceedings. Referring (1) Mad. 391 396 to section 49 (1), Ramesam off. C. J., observed that the said clause cannot imply that the claims covered by it should be made before the Collector makes his award. Cornish J., who delivered a concurrent judgment agreed with this view. It appears that in coming to this conclusion, both the learned judges referred to the special circumstances under which the claimant made his claim under section 49 on September, 29, that is to say, after the award. and those special circumstances clearly showed that the claimant was not to blame for the delay made by him in expressing his desire under section 49 (1). In our opinion, however, the scheme of section 49 is clear. Section 49 (1) has imposed a ban on taking any further action under any of the provisions of the Act where the owner expresses a desire that the whole of his house should be acquired, and that clearly indicates that after the relevant notifications are issued under sections 4 and 6, if it appears to the owner of the land under acquisition that a part of his house is being acquired, he has to express his desire before an award is made under section 11 ; otherwise if the owner allows. proceedings to be taken under the provisions of the Act and an award follows, it would lead to unnecessary complications if the owner is allowed to express his desire under section 49 (1) and the reference is then required to be made under the second proviso to section 49 (1). Logically, if an enquiry has to be made as contemplated by section 49, it must precede any further action under the other provisions of the Act, and that is the main basis of the mandatory prohibition prescribed by section 49 (1). The said prohibition coupled with the first proviso to section 49 (1) leads to the conclusion that the owner cannot take recourse to section 49 after an award is made under section 1 1 of the Act. In our opinion, therefore, the High Court did not correctly interpret the effect of section 49 (1) when it held that the said section did not require the claimant to put forward his claim before the award was made. 397 In Krishna Das Roy vs The Land Acquisition Collector of Pabna (1), the Calcutta High Court, on the other hand, seems to have taken the view and we think, rightly, that if the owner wants to make an application expressing his desire under section 49 (1), he has to make that application some time before the award is actually made. The result is, the appeal is allowed, the order passed by the High Court is set aside and that of the District judge restored. There will be no order as to costs. Appeal allowed.

The appellant, a Sub Inspector of Police in Mysore State, was committed to Sessions Court for trial on the complaint of K. K alleged that the appellant and another person had severely beaten T, and that the appellant, when forcibly taking away T, and requested by K to excuse T, wantonly fired on two persons. The appellant 's case, on which his counter case is based, is that while he and a constable, after arresting, were taking T to the P. )lice Station, 20 or 30 persons attacked them and rescued T. Not heeding to appellant 's advice to desist from violence. the crowed asked him to wait till K came. On appellant 's refusal, the crowd threatened. just then K came. Apprehending danger to their lives, the appellant first fired in the air, but when the people pelted stones and grappled him, two shots went off injuring two persons. K snatched his revolver and two mazahars. prepared by the appellant in T 's case, and the people beat him. These persons have also been committed to the Sesions Court for trial. The Sesions Judge made the reference for quashing the commitment of the appellant, holding that the Magistrate could not have taken cognizance of the offences without the sanction of the State Government in view of the provisions of sections 132 and 197 Code of Criminal Procedure. The High Court rejected the reference of the Sessions Judge for quashing the commitment order. On appeal by special leave, the appellant contended that (1) the appellant could be dismissed by the State Government alone and, therefore, sanction under section 197 Code of Criminal Procedure was necessary ; (2) a police officer cannot be prosecuted without a sanction for an offence which the police officer alleges took place in course of his duty ; (3) when a case and 672 a counter case are both committed to Sessions Court, it should be inferred that the appellant has prima facie established his version of the incident and that his Producing a copy of the committal order in the counter case is sufficient for holding that sanction under section 132 Code of Criminal Procedure was necessary, and (4) it is not necessary for the police officer to prove conclusively that he was dispersing an unlawfull assembly before he can raise the plea of want of sanction. Hold that (1) in view of the provisions of sections 4 (C), 8 and sub sections (1) & (3) of section 26 of the Mysore Police Act, the Inspector General of Police can dismiss Sub Inspector and therefore, no sanction of the State Government for prosecution of the appellant was necessary even if he had committed the offences alleged while acting or purporting to act in discharge of his official duty ; (2) the court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to hold either definitely that the alleged offence was committed or was probably committed in connection with action under sections 127 and 128 of the Code. If at any stage of the proceedings it 'appears to the court that the action of the police officer complained of comes within the provisions of sections 127 and 128 of the Code, the court should hold that sanction was necessary. The jurisdiction of the court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded. Majajoj Dobey vs H. C. Bhari, ; , referred to. (3) in the present case it does not appear from the record that the evidence prima facie establishes the appellant 's contention that be could not be prosecuted without the sanction of the Government. This question is to be decided on the evidence in this case and not on the basis of evidence and inferences drawn in the other case ; (4) in order that the appellant can get the benefit of the provisions of section 132 of the Code, he has to establish that (i) there was an unlawful assembly likely to cause disturbance of public peace, (ii) the assembly was commanded to disperse,(iii) the assembly did not disperse on the command or, if no command had been given, its conduct had shown a determination not to disperse; and (iv) in the circumstances he had 673 used force against the members of such assembly. This he has to do in the same manner as an accused has to establish an exception he pleads in his defence. Therefore, the accused in the present case has to show to the court that the alleged offences were committed during the performance of his duties and on his so doing the court would hold that the complaint could not proceed without the sanction of the Government under section 132 of the Code. Held further, that if the court decides that section 132 of the Code applies to the case the proceedings on the complaint instituted without the sanction would be void and the proper order for it to pass would be that the proceeding be dropped and the complaint rejected.

N: Criminal Appeal No. 280 of 1988. From the Judgment and Order dated 26.9.1986 of the High Court of Delhi in Crl. W.P. No.361 of 1986. R.L. Panjwani and R.D. Upadhyay for the Appellant. section Madhu Sudan Rao, N.L. Kakkar and Miss A. Subhashini for the Respondents. The following Order of the Court was delivered: O R D E R Special leave granted. This is an unfortunate case which tends to shake the credibility of police investigation and undermines the faith of common man in Delhi Police which is supposed to protect life and liberty of citizens and maintain law and order. There has been serious allegations of murder by torture against the police and further about the haphazard manner in which the investigation against the accused police officers was investigated with a view to shield the guilty members of the Delhi Police. Kashmeri Devi the appellant is the unfortunate widow of Gopi Ram deceased who was a tonga driver. On the fateful night of 22/23.8.1986 two sub inspectors accompanied by two constables visited the house of Sudesh Kumar of Prem Nagar. It is alleged that they started beating Sudesh Kumar. Hearing his shrieks his maternal uncle Gopi Ram deceased came to the spot, he tried to intervene whereupon the police men are alleged to have giving him beating also. Gopi Ram and Sudesh Kumar both were arrested and taken to the Police Station Patel Nagar where they were stripped of their clothes and the police men gave them serious beating with the help of iron rods and iron rulers. It is alleged that Gopi Ram succumbed to his injuries at the police station sustained at the hands of Satish Kumar and Rana sub inspectors and Jagmal Singh and Romesh constables while in police custody. It is alleged that thereafter a post mortem was conducted and the dead body of Gopi Ram was cremated without handing over the dead body to the appellant. This incident caused consternation in the locality and on 23.8.1986 a mob surrounded the police station to lodge 703 its protest against the death of Gopi Ram deceased at the police hands, Undaunted the Patel Nagar police registered a cause under Section 147/148/149/353/332 of the Indian Penal Code against Shankar brother of the deceased who was arrested along with others on 23.8.1986 as they were members of the mob. Sudesh Kumar who had been taken to the police station along with Gopi Ram filed a written complaint at the police Station Patel Nagar on 23.8.1986, making allegations against the two sub inspectors and the constables. In that complaint Sudesh Kumar alleged that as a result of beating by police officers his maternal uncle became unconscious and thereafter the police officers kept on beating him at the police station as a result of which he died. He further alleged that the police officers took the dead body of Gopi Ram to the hospital from there they brought it to another hospital, where he was forced to sign blank papers. He named the police officers who were responsible of the death of his maternal uncle. On that complaint a case was registered under Sections 302/342 IPC against the police officers of Patel Nagar Police Station but no action was taken against those officers. After some time case was converted to Section 304 IPC for purpose of investigation. The appellant Kashmeri Devi approached the High Court by means of a writ petition under Article 226 of the Constitution for transferring the investigation of the case from the Crime Branch of the Delhi Police to Central Bureau of Investigation. Division Bench of the High Court dismissed the writ petition by its order dated 26th September, 1986. Thereupon, the appellant approached this Court by means of special leave petition. During the pendency of the special leave petition this court granted time to the respondents twice for filing counter affidavit but the respondents failed to file their counter affidavit. Ultimately on 11.4.1988 Kanwaljit Deol, Deputy Commissioner of Police Head Quarters has filed counter affidavit setting out a totally different story. He has stated that on 23.8.1986 the police received information that one Gopi of Prem Nagar was brought dead by Sudesh Kumar from Prem Nagar to Ram Manohar Lohia Hospital, New Delhi. On receipt of the information from the Hospital one sub inspector of police went to Dr. Ram Manohar Lohia Hospital and obtained medical legal certificate of the deceased 's Gopi Ram. It is alleged that on a personal search of the deceased 's body the police recovered 5 small packets of smack from his pocket. In his affidavit an attempt has been made out to show that Gopi Ram had died on account of alcohol and marphine and not on account of any injuries caused to him by the police and in this connection a story has been set up that Sudesh Kumar had brought the dead body to Dr. Ram Manohar Lohia Hospital and on receiving 704 information from the Hospital the police made recovery of smack from the the deceased 's pocket. The affidavit is completely silent about the allegations made by the appellant that the Gopi Ram and Sudesh Kumar were arrested taken to the police station and Gopi Ram was beaten to death. The affidavit further refers to some medical report which purports to state that deceased died on account of alcohol and marphine. It is further stated that after taking into consideration the cause of the death given by the Doctor, charges were amended to Sections 323/342/34 IPC and after completing the investigation challan was prepared and the same has been put in the Magistrate 's Court. The affidavit of Kanwaljit Deol states that in the absence of evidence the story set up by Sudesh Kumar could not be substantiated. After hearing learned counsel for the parties and on perusal of the record we are satisfied that prima facie the police have not acted in a forthright manner in investigating the case, registered on the complaint of Sudesh Kumar. The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing. The appellant has been crying hoarse to get the investigation done by an independent authority but none responded to her complaint. The Additional Sessions Judge while considering the bail application of Jagmal Singh, Constable, considered the autopsy report and observed that Doctor had postponed giving his opinion regarding the cause of death although the injuries were antimortem. The learned Sessions Judge referring to a number of circumstances observed that the investigating officer had converted the case from 302 IPC to 304 IPC on flimsy grounds within hours of the registration of the case even without waiting for the postmortem report. The learned Sessions Judge further observed that it was a prima facie case of deliberate murder of an innocent illiterate poor citizen of Delhi in police custody and investigation was partisan. We are in full agreement with the observations made by the learned Sessions Judge. As already noted during the pendency of the writ petition before the High Court and special leave petition before this Court the case was further converted from 304 IPC to 323/34 IPC. Prima facie the police has acted in partisan manner to shield the real culprits and the investigation of the case has not been done in a proper and objective manner. We are therefore of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known. 705 Since according to the respondents charge sheet has already been submitted to the Magistrate we direct the trial court before whom the charge sheet has been submitted to exercise his powers under Section 173(8) Cr. P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge sheet, if any, in accordance with law. The appeal stands disposed of accordingly. N.V.K. Appeal disposed of.

The respondents who imported 'Sancticizer 429 ', contested the levy of duty by the Department and filed a claim for refund, which was rejected by the Assistant Collector on the ground, that on ted the product was found to be organic compound (easter type) of colourless viscose liquid and as per 7.0.046 should be considered a polymeric plasticizer. On appeal, the Appellate Collector came to the conclusion that Chapter 38 of the was residuary in nature and that if the item was not covered by any other Chapter of the Tariff Act only then it would fall under the said Chapter. He also found that linear polysters were covered by CCCN 39.01(E) and that the goods in question are formed by the condensation of diabasic acid within dihydric alcohols and were similar to the polycondensation products of terphthalic acid or adipic acid with ethanediel covered by the aforesaid CCCN headings, which corresponds to 39.01/06 of the . The Appellate Collector upheld the decision of the Assistant Collector. The respondent appealed to the Customs Excise and Gold Control Appellate Tribunal which allowed the appeals taking the view that plasticizers were not resins, but are added to resins to impart better flexibility of plastic properties to the latter, that 'Sancticizer 429 ' is admittedly a plasticizer and would therefore not have fallen for classification under Heading No. 39.01/06 of the Customs Tariff Schedule as it stood before amendment in 1978 and that the product was classifiable 642 under heading 38.01/19(6) of the Tariff Act. Dismissing the Appeals of the Revenue, this Court, ^ HELD: 1. As per various technical authorities, plasticizers are not resins. These are added to resins to impart better flexibility or plastic properties to them. These are not plastic materials by themselves either. [644H] 2. The goods under reference in the instant case, are not similar to resols or polysiobutylenes. Their classification under Heading 39.01/06 of the , prior to and even after its amendment in 1978, should not be applicable. Not being separately defined chemical compounds, these would also not fall within Chapter 28 or 29 of the Act. Since these are not specified elsewhere their appropriate classification would be under Heading No. 38.01/19(6) as "Plasticizers, not elsewhere specified". [645C] 3. In these matters how a good is known in the trade and treated in the trade literature is relevant and significant and often decisive factor. [645D] "Encyclopaedia of Chemical Technology" 3rd Edition page 111 referred to. Bhor Industries Ltd. vs Collector of Customs, Bombay, and Collector of Customs, Bombay vs Bhor Industries Ltd. and another, approved.

Appeal No. 36 of 1968. Appeal by special leave from the judgment and order dated November 19, 1963 of the Bombay High Court in Civil Revision Application No. 167 of 1959. V. M. Tarkunde, P. C. Bhartari, O. C. Mathur and Ravinder Narain, for the appellant. A. K. Sen, M. section Gupta and section L. Jain, for the respondent. The Judgment of the Court was delivered by Ray, J. This appeal is by special leave from the judgment dated 19 November, 1963 of the High Court of Bombay dismis sing the appellant defendant tenant 's application for revision in a decree for eviction of the defendant. The appellant was tenant of the respondent. On 28 April, 1954 the appellant filed an application under section II of the Bombay Rent Act for fixation of standard rent. During the 627 pendency of the application the respondent landlady served a notice on the appellant in the month of March, 1955 terminating the tenancy on the ground that the appellant had failed to pay rent from I March, 1954. On 25 April, 1955 a suit was filed for eviction of the appellant. During the pendency of the suit on 29 June, 1956, the standard rent was fixed at Rs.55/7/ p.m. The contractual rent was Rs. 85/ p.m. When the suit came up for hearing on 5 October, 1956, it appeared that the appellant paid all the arrears of rent in accordance with the standard rent but did not pay the Costs of the suit. The trial court passed an ejectment decree against the appellant. The appellant preferred an appeal. The appellate court took the view that the order of the trial court was justified under section 12(3)(b) of the Bombay Rent Act. Section 12(3)(b) of the Bombay Rent Act provides that no decree in eviction shall be passed, if on the first day of the hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders. in the court the standard rent and permitted increase in rent due, and thereafter continues to pay or tender in court regularly the said rent and permitted increase till the suit is finally decided and also pays costs of the suit as directed by the Court. The appellant then filed an application for revision in the High Court. The contention which was advanced in the High Court and repeated here was that the courts were in error in decreeing the suit for non payment of costs because the trial court had not passed any order fixing the amount of costs. It was said that only when an order determining the amount of costs had been made by the court that the tenant could be said to be within the mischief of the provisions of the statute for non payment of costs so determined by the courts. The High Court rightly rejected the contention for two reasons. First, though a formal order as to costs was not made, yet the trial court had made an order directing the appellant to pay the amount of costs and the appellant did not pay the costs. Secondly, the appellant stated before the trial court that the appellant was not in a position to tender what is described as "professional costs" and court costs of the suit. It is indisputable that in the trial court the appellant not only admitted failure to pay costs but also inability to tender the costs. The appellant could be entitled to protection against eviction only if the appellant complied with the provisions of the statute. The appellant was required to tender not only the arrears of rent but .also the, costs of the suit. In the trial court the appellant admitted non compliance with the provisions of the statute. Therefore, the 628 trial court rightly held that the appellant was not entitled to any benefit or protection against eviction. The appellate court held that because the appellant filed an application for fixation of standard rent and therefore there being a dispute between the parties regarding the standard rent no order in eviction could be passed under section 12(3) (a) of the Bombay Rent Act. The appellate court, however, held that the case fell within the provisions of section 12(3) (b) of the Bombay Rent Act by reason of the failure of the appellant to pay costs of the suit. Counsel for the appellant contended that the costs were deposited on 22 November, 1956 and therefore the High Court should have exercised discretion in favour of the appellant. The High Court stated that the decree was passed on 5 October, 1956 and the appeal was filed on 18 October, 1956 and the amount of costs was not deposited with the filing of the memorandum of appeal. The High Court concluded by stating that "the decree of the trial court was made on 5 October, 1956. We are in the year 1963. The attitude adopted by the petitioner is not such in which a discretion can be exercised in favour of the petitioner". The High Court heard the application on 19 November, 1963. Counsel for the appellant invited our attention to paragraph 13 of the application for review made in the High Court where the appellant alleged that on 7 December, 1956 the costs were paid. No portion of the judgment of the High Court is open to any criticism for the obvious reason that when the memorandum of appeal was filed in the High Court on 18 October, 1956 the costs were not paid. The application for review also indicates that when the matter was heard before the High Court it was not brought to the notice of the High Court that the costs were paid on 7 December, 1956 as alleged. The appeal is from the judgment of the High Court. It would be improper to interfere with exercise of discretion passed by the High Court when the matter was not brought to the notice of the High Court. Discretion is exercised by the court in the facts and circumstances of the case. Any interference with the exercise of discretion in the present case would be substituting the discretion 'of this Court on a set of facts which were never presented to the High Court. The appellant was not entitled to any relief under the provisions of the Bombay Rent Act. The High Court rightly rejected the application for revision. The appeal fails and is dismissed with costs. V.P.S. Appeal dismissed.

In a suit for evicition on the ground of non payment of rent a decree was passed directing the tenant to pay the landlady 's costs, as, by that time, the tenant had paid all the arrears of rent as fixed; but the tenant did not pay or tender the costs. Therefore, the court passed an order of eviction. His appeal, a revision to the High Court, and a review petition to the High Court were all dismissed. In appeal to this Court, HELD : (1) The tenant would be entitled to the protection under section 12(3) (b) of the, Bombay Rent Act, only if he complied with its provisions by paying or tendering not only the arrears of rent but also the costs of the suit. Since the appellant admitted his inability to, comply with the provision, he could not claim protection against eviction. [627 D, G] (2) Assuming that the costs were paid at a later date as alleged by the appellant, that fact was not brought to the notice of the High Court, and therefore this Court will not interfere with the exercise of discretion by the High Court in the set of facts and circumstances presented to the High Court. [628 F G]

Appeal Nos. 491, 492 of 1964. Appeal by special leave from the judgment and order dated September 14, 1962 of the Andhra Pradesh High Court in Case Referred No. 4 of 1961. D. Narsaraju, Anwarullah Pasha, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. A. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Subba Rao, J. This appeal by special leave raises the question of the, true construction of the provision of section 4(3) (i) of the: Indian Income tax Act, 1922, hereinafter called the Act. The relevant facts may be briefly stated. By an indenture dated September 14, 1950, H.E.H. the Nizam of Hyderabad created a trust known as "H.E.H. the Nizam 's Religious Endowment Trust", hereinafter referred to as the Trust, under which he settled certain securities of the face value of Rs. 40 lakhs for implementing the objects described in the Trust deed. Under the Trust deed three trustees were appointed, including the settlor. It will be convenient at this stage to read the relevant provisions of the trust deed. Clause 3. The Trustees shall hold and stand possessed of the Trust Fund upon Trust. (a) To manage the Trust Fund and to recover the interest and other income thereof. (b) (c) During the life time of the Settlor the balance of the income shall be accumulated and shall be added to the corpus of the Trust Fund. (d) On and after the death of the Settlor the Trustees shall hold the accumulated corpus of the Trust Fund upon trust to spend the income thereof for any one or more of the following religious or charitable objects in such shares and proportions and in such manner as the Trustees shall in their absolute discretion deem proper. 3 86 (i) For annual religious offerings to the sacred places of the Muslims outside India, in Hedjaz and Iraq, viz., Macca, Madina Najaf Karbala, Kazamain, Sirraman Raa and Mashad (in Iran) and Baghdad and Basra. (ii) For help either in lump sum or by way of monthly allowances, to the Khuddam or the servants who are looking after the sacred Shrines, and also by way of charity to pious people residing at these holy places. (iii) For the up keep of the sacred buildings constructed in the life time of the Settlor such as, masjids (mosques), Azakhana (mourning house, built to commemorate the name of His Exalted Highness 's late mother), two Askurkhanas (where the Alam sits inside the City palace during Moharram and Ramzan), and the Maqbaras (Tombs) and particularly mentioned in the Second schedule hereunder written. (iv) For the annual expenditure during the mourning period of Moharram and Safer and also during other religious months, when different kinds of ceremonies, religious discourses (Taqreers) Id Tagreebs, etc. are performed, including the religious offerings to the sacred Shrines at Ajmer and Gulbarga. (v) It is the desire of the Settlor that the income of the Trust shall, as far as possible, be spent equally for the above mentioned four religious and charitable objects and purposes and in the event of there being any surplus then the same may be spent by the Trustees for any other religious and charitable objects for the benefit of Sunni Mohamedans with liberty X X to the Trustees in their absolute discretion to accumulate the surplus, if any, for any year or years and utilize the same for the purposes in this 387 clause provided for any subsequent year or years. Clause 4. It is hereby further agreed and declared that in all matters wherein the Trustees have a discretionary power the votes of the majority of the Trustees for the time being voting in the matter shall prevail and be binding on the minority as well as on those Trustees who may not have voted and if the Trustees shall be equally divided in opinion the matter shall during the life time of the Settlor be decided according to the opinion of the Settlor and after his death according to the opinion of the Trustee most senior in age for the time being. Briefly stated, under the deed the Trust fund was to be accumulated during the life time of the settlor and, after his death, the Trustees should hold the said fund upon trust to spend the income therefrom for one or more of the four religious and charitable objects mentioned therein. Two of the said objects were for religious and charitable purposes within the taxable territories and the other two for purposes outside the taxable territories. It is important to notice that under the deed no power was conferred on the trustees during the life time of the settlor to set apart and allocate the accumulated income or a part of it from the Trust properties for any one or more of the objects mentioned therein : that could be done only by the Trustees after the death of the settlor. The said settlor is still alive. For the assessment years 1952 53 and 1953 54 the Trustees were assessed to income tax on the income during the relevant previous years arising from the said Trust property. The Trustees claimed exemption under section 4(3) (ii) of the Act. The Income tax Officer, on appeal the Appellate Assistant Commissioner, and on further appeals the Income tax Appellate Tribunal, Hyderabad, concurrently held that the assessee was not entitled to the exemption under the said section. At the instance of the assessee, the following question was referred to the High Court under section 66(1) of the Act "Whether the income arising from property settled upon trust under the deed of settlement, dated 14 9 1950, or any part thereof is exempt from tax under Section 4(3) (i) of the Indian Income tax Act, 1922. " A Division Bench of the Andhra Pradesh High Court, Hydera bad, consisting of Seshachelapati and Venkatesam, JJ, on a 388 consideration of the relevant provisions of the deed and the Act, came to the conclusion that on the terms of section 4(3) (i) of the Act, the Trust was not entitled to the exemption. Hence the appeals. Mr. Narasa Raju, learned counsel for the assessee, contended that proviso (a) to section 4 (3 ) (i) of the Act would be attracted ,only when the Trustees exercised their option to apply the income to religious or charitable purposes without the taxable territories, that in the present case the Trustees had not exercised the said option and that, therefore, the assessee 's case was directly governed by the substantive part of cl. (i) of section 4(3) of the Act. As the income was being accumulated by the Trustees, the argument proceeded, without setting apart the whole or any part thereof for one or other of the purposes mentioned in the Trust deed, it should be held that the Trustees were accumulating the income for religious or charitable purposes within the taxable territories, since two of the named purposes were admittedly within the taxable territories. He would say that if the Trustees exercised their option to apply the fund for the purposes without the taxable territories, the Income tax authorities could, in terms of the proviso, include that income in the total income. Mr. A. V. Viswanatha Sastri, learned counsel for the Reve nue, on the other hand, argued that the assessee would be entitled to exemption under section 4(3) (i) of the Act only if the income was specifically accumulated for religious and charitable purposes within the taxable territories and that, as in the present ,case admittedly there was no setting apart of the income for the said purposes, the assessee could not claim any exemption thereunder. Let us now scrutinize the validity of the rival contentions. Section 4(3) (i) of the Act reads : "Subject to the provisions of clause (c) of subsection (1) of section 16, any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes, in so far as such income is applied or accumulated for application to such religious or charitable purposes as relate to anything done within the taxable territories, and in the case of property so held in part only for such purposes, the income applied or finally set apart for application thereto 389 Provided that such income shall be included in the total income (a) if it is applied to religious or charitable purposes without the taxable territories, but in the following cases, namely : (i) where the property is held under trust or other legal obligation created before the ,commencement of the Indian Income tax (Amendment) Act, 1953 (25 of 1953), and the income therefrom is applied to such purposes without the taxable territories; and (ii) where the property is held under trust or other legal obligation created after such commencement, and the income therefrom is applied without the taxable territories to charitable purposes which tend to promote international welfare in which India is interested. The Central Board of Revenue may, by general or special order, direct that it shall not be included in the total income. Under this section a particular class or kind of income is exempted from taxation. It is settled law that the burden is on the Revenue authorities to show that the income is liable, to tax under the statute; but the onus of showing that a particular class of income is exempt from taxation lies on the assessee. To earn the exemption, the assessee has to establish that his case clearly and squarely falls within the ambit of the said provisions of the Act. A brief history of cl. (i) of section 4(3) of the Act will be useful in the interpretation of its terms. The present cl. (i) was substituted for the following clause by the Income tax (Amendment) Act, 1953, with effect from April 1, 1952 : "(i) any income derived from property held in trust or other legal obligation wholly for religious or charitable purposes, and in the case of property so held in part only for such purposes, the income applied or finally set apart for application thereto. " Under the said clause,, trust income, irrespective of the fact whether the said purposes were within or without the taxable territories, was exempt from tax in so far as the said income was 390 applied or finally set apart for the said purposes. Presumably as the State did not like to forgo the revenue in favour of charity outside the country, the amended clause described with precision the class or kind of income that is exempt thereunder so as to exclude therefrom income applied or accumulated for religious or charitable purposes without the taxable territories. The substantive part of cl. (i) is in two parts : the first pan relates to the income derived from property held under trust wholly for religious or charitable purposes and the second part, to income derived from property so held in part only for such purposes. But the necessary condition for attracting the first part of the clause is that the said income is applied or accumulated for application to such religious or charitable purposes within the taxable territories; and to attract the second part, the income from the property so held in part shall have been applied or finally set apart for application to the said purposes. A comparative study of the two part , clarifies the scope of the provision. The expression used in the first part is "applied or accumulated for application" and the expression used in the second part is "applied or finally set apart for application". The words "applied or finally set apart for application" in the second part indicate that unless the income from the said property is applied or finally set apart for the purposes within the taxable territories, the said income does not earn the exemption. There cannot be any reason why a different meaning should be given to the expression "applied or accumulated for application" in the first part of the clause; for, on principle, there cannot be any possible distinction between such income from the property wholly held under trust or a part of the property held in trust. The words "applied" and "accumulated", therefore, must mean " applied or finally set apart". "Applied" means that the income is actually applied for the said purposes in the taxable territories; and "accumulated" means that the income is set apart during the year for future spending on the said purposes. The expression "accumulated for a purpose involves a conscious act in present and posits a clear indication on the part of the trustee to set apart the income for that purpose. It is, therefore, manifest that under cl. (i), only income from the property wholly or in part held in trust actually applied or set apart for application for future spending on religious or charitable purposes within the taxable territories is exempted from inclusion in the total income. As has been pointed out by Craies in his book on Statute Law, 6th Edn. at p. 217, "The effect of an excepting or 391 qualifying proviso, according to the ordinary rules of construction, is to except out the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it. " The proviso to cl. (i) excepts the two classes of income subject to the condition mentioned therein from the operation of the substantive clause. It comes into operation only when the said income is applied to religious or charitable purposes without the taxable territories. In that event, the Central Board of Revenue, by general or special order, may, direct that it shall not be included in the total income. The proviso also throws light on the construction of the substantive part of cl. (i) as the exception can be invoked only upon the application of the income to the said purposes outside the taxable territories. The application of the income in presents or, in future for purposes in or outside the taxable territories, as the case may be, is the necessary condition for invoking either the substantive part of the clause or the proviso thereto. The argument of Mr. Narasa Raju, namely, that as at the time the income was accumulated the Trustees did not exerciser the option, the accumulation would necessarily be for some of the purposes within the taxable territories, leads to a fallacy. If accepted, it would enlarge the scope of the exemption : while the section expressly exempts only such income as is applied or accumulated for application for such purposes within the taxable territories, the income would be exempted even though it was accumulated for mixed purposes, that is, for purposes both within and without the taxable territories. Purposes within the taxable territories are not the same as mixed purposes. At best the amounts are kept under a suspense account with an Options to the trustees to set apart at a later date for purposes within or without the taxable territories. Howsoever the option is exercised at a later stage, it is not an accumulation during the, relevant accounting year for purposes within the taxable territories. Some of the cases cited at the Bar may not be of direct application, but the principle laid down therein may be helpful in construing the terms of the present Trust deed. The Judicial Committee in Mohammad Ibrahim Riza vs Income tax Commissioner, Nagpur(1) held that where the purposes of a trust were not wholly charitable or religious and no portion of the property had 'been set aside for those purposes, the income from the trust could not be identified as appropriated exclusively thereto. The (1) (1930) L.R. 57 I.A. 260. 392 principle underlying this decision is, where a trust is for mixed purposes, some religious and other secular, with an option to the trustee to select one or other of the purposes, it is not possible to predicate till the selection is made that the object is for religious or charitable purposes. In the present case, an option is given to the Trustees to set apart the income for the purposes within the taxable territories or without such territories and till a selection is made it is not equally possible to predicate that the accumulation of income is for purposes within the taxable territories. Till the Trustees set apart the accumulation for the purposes within the taxable territories, it cannot be said that the purposes are within the taxable territories. Mr. Narasa Raju attempted to argue that in the present case the income was set apart for purposes within the taxable territories. This aspect of the question was never raised till now. It involves a question of fact. Clause 3 (d) (v) of the Trust deed on which reliance is placed is only an expression of desire on the part of the settlor that the income of the Trust should be spent equally on the four religious and charitable purposes mentioned in the deed. The said desire does not amount to setting apart by the Trustees of the whole or a part of the income from the Trust for purposes within the taxable territories. Indeed, cl. 3 (d) of the Trust deed indicates that the Trustees have no power to set apart or accumulate the income for any of the purposes mentioned in the Trust deed till after the death of the settlor. We cannot, therefore, hold on the material placed before us that the Trustees have set apart the accumulated income for purposes within the taxable territories. For the aforesaid reasons we hold that the answer given by the High Court to the question referred to it by the Income tax Appellate Tribunal is correct. The appeals fail and are dismissed with costs. One hearing fee. Appeals dismissed.

A trust was created for four religious and charitable objects, two of the objects were within taxable territories and the other two were outside the taxable territories. The income derived from the trust property was not allocated or set apart for the said purposes. The Trustees were assessed to Income tax on income derived on the Trust property. The Trustees ' claim for exemption under s ' 4(3) (ii) of the Income tax Act was not accepted by the Revenue and the High Court. In appeal to this Court the, Trustees contended that proviso (a) to s ' 4(3) (i) of the Act would be attracted only when the Trustees exctcised their option to apply the income to religious or charitable purposes outside the taxable territories, that in the present case the Trustees had not exercised the said option, and that therefore their case was directly governed by the substantive part of cl. (i) of section 4(3) of the Act. HELD : Under cl. (i) of section 5(3) of the Act only income from the property wholly or in part held in trust actually applied or set apart for application for future spending on religious or charitable purposes within the taxable territories is exempted from inclusion in the: total income [390 G H] The substantive part of cl. (i) of section 4(3) is in two parts : the first part relates to the income derived from property held under trust whooly for religious or charitable purposes and the second part to income derived from property held in part only for such purpose. The words "applied 'Or finally set apart for application" in the second part indicate that unless the income from the, said property is applied or finally set apart for the purposes within the taxable territories, the said income does not earn the exemption. There cannot be any reason why a different meaning should be given to the expression "applied or accumulated for application" in the first part of the clause, for, on principle, there cannot be any possible distinction between such income from the property wholly held under the trust or a part of the property held in trust. The words "applied" and "accumulated" , therefore, must mean "applied or finally set apart". "Applied" means that the income is actually applied for the said purposes in the taxable territories; and "accumulated" means that the income is set apart during the year for future spending on the said purposes. The expression "accumulated for a purpose" involves a conscious act in presenti and posits a clear indication on the part of the trustee to set apart the income for that purpose [390 B G] 'Till the Trustee set apart the accumulation for the purposes within the taxable territories, it cannot be said that Me, purposes are within the taxable territories. Mohammad Ibrahim Riza V. Income tax Commissioner, Nagpur, (1930) L.R. 57 I.A. 260, referred to.

Appeal No. 709 of 1975. (Appeal by Special Leave from the Judgment and Order dt. 9 10 74 of the Madras High Court in Referred ease No. 4 of 1968) P. Ram Reddy, C. Ramakrishna and A. V.V. Nair, for the Appellant. V.P. Raman, A.V. Rangam and Miss A. Subhashini, for the Respondent. The Judgment of the Court was delivered by SHINGHAL J. This appeal by special leave arises out of the decision of the Madras High Court dated October 9, 1974, on a reference by the Chief Controlling Revenue authority under section 57 of the Indian Stamp Act, 1899, hereinafter referred to as the Act. The Board of Revenue, Madras, which was the Chief Controlling Revenue authority, initially stated the case raising the following questions for decision, (a) Whether the decision of the Board of Revenue that the instrument relating to the Deed of Trust and Mortgage would attract the levy of a Stamp Duty as laid down in Article 40(b) of Schedule I of the Indian Stamp Act mad that the debentures would be exempted from the levy of stamp duty is correct or not; and (b) Whether the claim of the Respondent herein that the stamp duty is payable on the debenture under Article 27(a) and on the Deed of Trust and Mortgage under Article 40(c) is tenable or not ? The High Court directed the Board of Revenue to refer three additional questions, but ultimately took the view that the additional questions did not really arise in the case. It answered the first question in 567 favour of the Revenue and the second question against the Madras Refineries Limited, hereinafter referred to as the Company. The Company feels aggrieved and has come up in appeal to this Court. It will be enough to state those facts which bear on the controversy before us. The Company was incorporated under the Indian , as a public limited company. An agreement known as the Loan and Note Purchase Agreement was executed be tween the Company and the First National City Bank and six others on December 20, 1966, by which the Company agreed to authorise the creation and issuance of $14,880,000 (U.S.) principal amount of its 5% secured notes Series 'A ', and $ 7,440,300 (U.S.) principal amount of its 51/2 secured notes Series 'S ', 'and the sale of, or the borrowing to be evidenced by such Notes in accordance with the terms and provisions of the agreement. The Notes were to be issued under and secured by a Deed of Trust and Mortgage between the Company and the First National City Bank. It was a1so agreed that the Notes shall be secured and shall have the other terms and provisions provided in the agreement and shall be guaranteed by the President Of India pursuant to the terms of a "Guarantee Agreement", in the prescribed form. We shall have occasion to refer to the relevant clauses of the Loan and Note Purchase Agreement, the Deed of Trust and Mortgage and the Guarantee Agreement as and when necessary. The Deed of Trust and Mortgage and the Guarantee Agreement were executed between the President and the First National City Bank (as Trustee) on June 15, 1967. In the meantime the Company made an application to the Collector under section 31 of the Act for opinion as to the stamp duty with which the Deed of Trust and Mortgage was. chargeable, and the Collector referred the matter to the Board of Reve nue. The Board decided on June 28, 1967 that the duty was chargeable on the Trust and Mortgage Deed under Article 40(b) of Schedule I to the Act. The Company paid Rs. 37,66,500/ as stamp duty under protest, stating that it would move the Board for a reference of the controversy to the High Court. The Trust and Mortgage Deed was registered on_Jane 30, 1967, and the 'A ' series debentures were issued the same day. The Company applied to the Board of Revenue to state the case to the High Court. 'B ' series debentures were issued on June 28, 1968. The case was stated on March 28, 1969 and was decided by the impugned decision of the High Court dated October 9, 1974. It has been argued by Mr. Ram Reddy for the appellant Company that the Guarantee Agreement was the principal and primary security, and the Deed of Trust and Mortgage was a collateral or auxiliary security and that the stamp duty on the Deed of Trust and Mortgage was payable in accordance with article 40(c). It has been urged that Guarantee Agree ment was exempt from duty under section 3 of the Stamp Act and the debentures were exempt under article 27. The controversy centres round the question whether the Guarantee Agreement could be said to be principal or primary security ? 568 Mr. Ram Reddy has invited our attention to the following passage in Sergeant on Stamp Duties and Companies Capital Duty, sixth edition, page 6, "Leading and principal object. With reference to the stamp duty upon instruments generally, it is a well settled rule of law that an instrument must be stamped for its leading and principal object, and the stamp covers everything accessory to that object. In Limeer Asphalte Paving Co. vs 1. R.C.C) it was stated "In order to determine whether any, and if any, what stamp duty is chargeable upon an instrument the legal rule is that the real and true meaning of the instrument is to be ascer tained; that the description of it given in the instrument itself by the parties is imma terial, even although they may have believed that its effect and operation was to create a security mentioned in the Stamp Act, and they so declare? ' This appears to be a correct statement of the law. We have therefore to determine the real and true meaning of the Guarantee Agreement and to decide whether it could be said to be the principal and primary security. The Loan and Note Purchase Agreement was executed on December 20, 1966, between the Company and the first National City Bank and others. Under that agreement, the Company was to authorise the creation and issuance of secured notes, series A and B, referred to above, and the notes were to be "issued under and secured 'by the Deed of Trust and Mortgage between the Company and the first Nation al City Bank". It was then stated in the Loan and Note Purchase Agreement as follows, "The Notes shall be dated, shall ma ture, shall bear interest, shall be payable, shall be secured and shall have such other terms and provisions as provided in the Mort gage and shall be guaranteed by the President of India Pursuant to the terms of a Guar antee Agreement (the "Guarantee Agree ment) in the form attached hereto as Exhib it 3. " It would thus appear that it was the Deed of Trust and Mortgage which was the security for the loan, although the loan was also guaranteed by the President in terms of the Guarantee Agreement. As has been stated, the Guarantee Agreement was made between the President of India and the first 'National City Bank. It was clearly stated in that agreement that the First National City Bank executed it "As Trustee under a Deed of Trust and Mortgage dated as June 15, 1967. " The Trust and Mortgage Deed was thus executed before (1) exhibit 211. 569 the execution of the Guarantee Agreement, even though both of them were executed on the same day, namely, June 15, 1967. It is true that it has been stated in the Guarantee Agreement that the President of India, as the guarantor, unconditionally guaranteed "has primary obligor and not as surety merely, the due and punctual payment from time to time" of the principal as well as the interest etc. stated in the agreement. And it was for that purpose that the guarantor agreed to "endorse upon each of the Notes at or before the issue and delivery thereof by the Company its guaranty of the prompt payment of the principal interest and premium thereof and of the other indebtedness. " It is also true that as stated in paragraph 10 of the Guarantee Agree ment, the obligations of the guarantor were "absolute and unconditional under any and all circumstances, and shall not be to any extent or in any way discharged, impaired or otherwise affected, except by performance thereof in accordance with the terms thereof. " We have also noticed the further stipulation that "Each and every remedy of the Trustee shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or under the Mortgage or any of the other collateral or now or hereafter existing at law or in equity or by statute." Mr. Ram Reddy has relied heavily on these averments in the Guarantee Agreement, but they cannot detract from the basic fact that the Deed of Trust and Mortgage was executed first in point of time and was the principal or primary security for the loan according to the terms and conditions of the agreement between the parties. It was that document which constituted the First National City Bank as the Trus tee, and enabled it to enter into the Guarantee Agreement with the President, and the President guaranteed the due performance of the obligations undertaken by the Company thereunder. The Deed of Trust and Mortgage, which was executed between the Company and the First National City Bank as a national banking association incorporated and existing under the laws of United States of America, stated that as the Company was in the process of constructing a refinery for the refining of crude oil and deemed it necessary to borrow money from time to time to. finance such construction and to issue its notes therefor and to "mortgage and charge its properties hereinafter described to secure the payment of such notes" it executed the Deed of Trust and Mortgage as security in accordance with the terms and conditions of Article 2 of the Deed of Trust and Mortgage to secure the due payment of the principal of and the premium, if any, and the interest on the Notes and of all other moneys for the time being and from time to time owing on the security of that Indenture and on the Notes and the performance by the Company of all of its obligations thereunder. The Deed of Trust and Mortgage was therefore clearly the principal or the primary security and could not be said to be a "collat eral agreement". The parties in fact clearly 570 stated in Article I, section 1.01 of the Deed of Trust and Mortgage as follows, "Collateral Agreements: The term "Collateral Agreements" shall mean the Guarantee Agreement and the Undertaking, hereinfater defined. " It was therefore specifically agreed between the parties that the Deed of Trust and Mortgage was not a collateral agreement. In all these facts and circumstances it is futile to contend that the Deed of Trust and Mortgage was not the principal or primary security. As was stated in Article 9 of that document, that security became enforceable in case of any or more "events of default", and it cannot be said that merely because the Guarantee Agreement contained the stipu lation that the President, as the Guarantor, uncondition ally guaranteed .the due and punctual payment of principal and interest etc. "as primary obligor and not as surety merely" that agreement become the principal or the primary security. It is the real and true meaning of the Deed of Trust and Mortgage and the Guarantee Agreement which has to be ascertained, and this leaves no room for doubt that the view taken by the High Court in this respect is correct and does not call for interference. Mr. Ram Reddy relied on some decisions to support his argument that the Guarantee Agreement was the security for the loan and was the princi pal or the primary document, but those cases were decided on different facts and have no real bearing on the controversy before us. The Guarantee Agreement was executed for and on behalf of the president by his Authorised Representative, and no stamp duty was chargeable for it by virtue of the proviso to section 3 of the Act. That in fact appears to be the reason why counsel for the appellant strenously argued that we should hold it to be the principal instrument, for he has next argued that the case falls within the purview of sec tion 4 (1) of the Act and the "Principal instrument" only would be chargeable with the duty prescribed in Schedule I, and deed of any trust and mortgage would be chargeable with a duty of Rs. 4.50 p. instead of the duty prescribed for it in that Schedule. We find however that there is no merit in this argument also. Sub section (1) of section 4 of the Act reads as follows, "4. Several instruments used in single transaction of sale, mortgage or settlement. (1) Where, in the case of any sale, mortgage or settlement several instru ments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in Schedule I, for the conveyance, mortgage or settlement, and each of the other instruments shall be chargeable with a duty of four rupees fifty naye paise instead of the duty (if any) prescribed for it in that Schedule. " 571 It is nobody 's case that the Guarantee Agreement was an instrument of sale , for it did not transfer the ownership of anything in exchange for a price paid or promised or part paid and part promised. It was also not an instrument of mortgage because it is no boly 's case that there was any transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan or an existing or a furture debt or the performance of an engagement which could give rise to a pecuniary liability. The expression "settlement" has been defined in clause (24) of section 2 of the Act as follows : "Settlement" means any non testamentary disposition in writing, of movable or immova ble property made (a) in consideration of marriage, (b) for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or (c) for any religious or charitable purpose; and includes an agreement in writing to make such a disposition and where any such dispo sition bas not been made in writing, any instrument recording, whether by way of decla ration of trust or otherwise, the terms of any such disposition) . " The term "disposition" has been defined in Strouds Judicial Dictionary as a devise "intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law" and "includes transfer and charge of proper ty". As the Guarantee Agreement did not have any such effect, it did not constitute a "settlement" also. That document was not therefore an instrument of sale, mortgage or settlement and did not fall within the purview of sub section (1) of section 4 of the Act. It was the Deed of Trust and Mortgage which was a "Mortgage deed" within the meaning of clause (17) of sec tion 2 of the Act, and it was therefore clearly chargeable with stamp duty at the rate prescribed in article 40(b) of Schedule I to. the Act. We have examined the other argument of Mr. Ram Reddy that even if the Guarantee Agreement was not the principal instrument, within the meaning of sub section (1) of section 4 of the Act, we should hold that the debentures which were issued by the Company were the principal and primary securi ty, and that the Deed of Trust and Mortgage was the "other instrument" within the meaning of that sub section and was chargeable with a duty of Rs. 4.50 p. instead of the duty prescribed for it in the Schedule. This argument is also futile for we find that the secured Notes (Series A and B) were issued under and were secured by the Deed of Trust and Mortgage. As 572 such, the Notes were issued in consequence and .on the security of the Deed of Trust and Mortgage and there is no justification for the contention that the debentures were the principal instruments, and not the Deed of Trust and Mortgage. As the High Court has rightly answered both the ques tions, we find no force in this appeal and it is dismissed with costs. P.B.R. Appeal dismissed.

The appellant was appointed in March 1948 by the Chief Justice of the Calcutta High Court as Registrar and Accountant General of the High Court on its original side and confirmed therein in November 1948. He was dismissed from that post with effect from 1st September 1951 by the Chief Justice by his order dated 3rd September 1951. There were various charges against the appellant and Mr. Justice Das Gupta was deputed by the Chief Justice to make an enquiry and submit a report. Mr. Justice Das Gupta made a full enquiry and submitted a report in which he exonerated the appellant in respect of some of the charges but found him guilty in respect of other charges. His conclusion was that the appellant must be held guilty of misconduct and dishonest conduct and that he was unfit to hold the office of Registrar of the Original Side of the Calcutta High Court. The Chief Justice issued notice to the appellant intimating that he agreed with the report and asked him to show cause why he should not be dismissed from his post. After be was given an opportunity to show cause, the appellant was dismissed by an order of the Chief Justice. The appellant 's petition to the Governor for the cancellation of the above order was dismissed. Subsequently his application for review to the Chief Justice of the prior order of dismissal and a writ petition under article 226 of the Constitution filed in the High Court in respect of his dismissal were also dismissed one after the other. The appellant obtained leave to appeal to the Supreme Court. The three main points for consideration by the Supreme Court were: 1. Whether the Chief Justice of the High Court had no power to dismiss the appellant; 2. Even if the Chief Justice had such power whether be could not delegate the enquiry into the charges to another Judge but should have made the enquiry himself; and 168 1332 3. Whether the order of dismissal by the Chief Justice could have been passed without previous consultation with the Public Services Commission as provided by article 320 of the Constitution. Held (1) that the Chief Justice was competent to dismiss the appellant because both by virtue of the provisions of clause 8 of the Letters Patent of the Calcutta High Court read with clause 4 of the same as well as articles 229(1), 313 and 367(1) of the Constitution read with section 16 of the General Clauses Act, the power of appointment includes the power of dismissal; (2) the objection to the validity of dismissal on the ground that the delegation of enquiry amounted to a delegation of power is without substance because the exercise of power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power and it is well settled that a statutory functionary exercising such a power cannot be said to have delegated his function merely because he has deputed a responsible and competent official to enquire and report; and (3) it was not necessary to have the previous consultation with the Public Service Commission for the dismissal of the appellant by the Chief Justice because article 320(3) of the Constitution taken as a whole is inconsistent with article 229 of the Constitution and also because the language thereof is not applicable to the High Court Staff. North West Frontier Province vs Suraj Narain Anand ([1948] L.R. 75 I.A. 343), Barnard vs National Dock Labour Board, ([1953] 2 Q.B. 18, 40), Board of Education vs Bice ([1911] A.C. 179), and Local Government Board vs Arlidge ([1915] A.C. 120), referred to.

Appeal No. 2354 of 1966. Appeal from the judgment and order dated July 1963 of the Punjab High Court in Civil Writ No. 1559 of 1962. M.C. Chagla and Janardan Sharma, for the appellants. B.C. Misra, S.K. Mehta and K.L. Mehta, for respondent No. 3. 211 The Judgment of the Court was delivered by Sikri, J. This appeal by certificate granted to the appellants by the High Court of Punjab under article 133(1)(c) of the Constitution raises one point, namely, whether a sub tenant is entitled to purchase the land from the land owner under section 18 of the Punjab Security of Land Tenures Act (Punj. Act X of 1953) hereinafter referred to as the Act. It would be sufficient to give few facts. The appellants, Jaimal and Ram Singh, applied under section 18 of the Act to. the Assistant Collector, 1st Grade, Hissar, to purchase 280 kanals 4 marlas of land situate in village Mehnda, Tehsil Hansi, District Hissar. The land was originally owned by respondents. 4 to 10, who had given this land on lease to Sheo Parshad, respondent No. 3. It is not in dispute that the appellants and their fathers had been in occupation of the land in dispute for the last 30 years, as sub tenants under Sheo Parshad, respondent No. 3. During the pendency of the application, respondents Nos. 4 to. 10 sold the land in dispute, on October 25, 1957, to. Sheo Parshad, and also in favour of his two. The Assistant Collector, by his order dated November 30, 1959, accepted the application of the appellants and allowed them to purchase 274 kanals of land for Rs. 6,730/ . On appeal, the Collector varied the order but the variation is not material for the purpose of this appeal. appellants then preferred an appeal to the Commissioner and Sheo Parshad filed Revision Petition to him against the order of the. Collector. The Commissioner upheld the claim of the appellants to purchase the land under section 18 of the Act at the price assessed by the Assistant Collector, but he modified the order in respect of 85 kanals 8 marlas which had been sold to the sons of Sheo Parshad. The final order in the proceedings was passed by the Financial Commissioner who, by his order dated August 27, 1962, held that the appellants. were not entitled to purchase the land under section 18 of the Act. Thereupon the appellants filed a petition under article 226 of the Constitution, seeking to quash the order of the Financial Commissioner. The High Court was also of the opinion that the appellants being sub tenants were not entitled to apply under section 18 of the Act. The answer to the question whether the appellants are entitled to apply under section 18 of the Act depends upon the interpretation. of section 18, which reads as follows: "18. Right of certain tenants to purchase land. (1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a land owner other than a small land owner 121 (i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or (ii) who has been restored to his tenancy under the provisions of this Act and whose periods of continuous occupation of the land comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amount to six years or more, or (iii) who was ejected from his tenancy after the 14th day of August, 1947, and before the commencement of this Act who was in continuous occupation of the land comprised in his tenancy for a period of six years or more immediately before his ejectment, shall be entitled to purchase from the land owner the land so held by him but not included in the reserved area of the land owner, in the case of a tenant falling within clause (i) or clause (ii) at any time, and in the case of a tenant falling within clause (iii) within a period of one year from the date of commencement of this Act: Provided that no tenant referred to in this subsection shall be entitled to. exercise any such right in respect of the land or any portion thereof, if he had sublet the land or the portion, as the case may be, to any other person, during any period of his continuous occupation, unless during that period the tenant was suffering from a legal disability or physical infirmity, or if a woman, was a widow or was unmarried; Provided further that if the land intended to be purchased is held by another tenant who is entitled to preempt the sale under the next preceding section, and who is not accepted by the purchasing tenant, the tenant in actual occupation shall have the right to pre empt the sale. (2) A tenant desirous of purchasing land under sub section (1) shall make an application in writing to an Assistant Collector of the First Grade, having jurisdiction over the land concerned, and the Assistant Collector, after giving notice to the landlord and to all other persons interested in the land and after making such inquiry as he thinks fit, shall determine the value of the land which shall be the average of the price obtaining for similar land in the locality during 10 years 213 immediately preceding the date on which the application is made. (3) The purchase price shall be three fourth of the value of land as so determined. (4) (a) The tenant shall be competent to pay the purchase price either in a lump sum or in six monthly instalments not exceeding ten in the manner prescribed. (b) On the purchase price or the first instalment thereof, as the case may .be, being deposited, the tenant shall be deemed to have become the owner of the land, and the Assistant Collector shall, where the tenant is not already in possession, and subject to the provisions of the Punjab Tenancy Act (XVI of 1887), put him in possession thereof. (c) If a default is. committed in the payment of any of the instalments, the entire outstanding balance shall on application by the person entitled to receive it, be recoverable as arrears of land revenue. (5) If the land is subject to a mortgage at the time the purchase, the land shall pass to the tenant unencumbered by the mortgage but the mortgage debt shall be a charge on the purchase money. (6) If there is no such charge as aforesaid the Assistant Collector shall, subject to any 'direction which he may receive from any court, pay the purchase money to the landowner. (7) If there is such a charge, the Assistant Collector shall, subject as aforesaid, apply in the discharge of the mortgage debt so much of the purchase money as is required for that purpose and pay the balance, if any, to the land owner, or retain the purchase money pending the decision of a civil Court as to the person or persons entitled thereto." "Land owner" is defined in section 2( 1 ) of the Act to mean person defined as such in the Punjab Land Revenue Act, 1887 (Act XVII of 1887) and shall include an "allottee" and "lessee". as defined in clauses (b) and (c) respectively, of section 2 of the East Punjab Displaced Persons (Land Resettlement)Act, 1949 (Act XXXVI of 1949), hereinafter referred to as the "Resettlement Act". The explanation to section 2 (1) reads: "In respect of land mortgaged with possession, the mortgagee shall be deemed to be the land owner. " The word "tenant" is defined in section 2 (6) as follows: 214 "Tenant" has the meaning assigned to it in the Punjab Tenancy Act, 1887 (Act XVI of 1887) and includes a sub tenant and self cultivating lessee, but shall not include a present holder, as defined in section 2 of the Resettlement Act." In the Land Revenue Act, 1887, "land owner" has been defined as follows,in s.3 (2) "land owner" does not include a tenant or an assignee of land revenue, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm, under this Act for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate. " It will be noticed that before a person can apply under section 18 of the Act he must be a tenant of a land owner other than a small land owner. There is no dispute that the land owner in this case is not a small land owner. The only question is whether the appellants, who were sub tenants, can be said to be tenants of the land owner within the meaning of section 18. If we look at the definitions of the words "tenant" and "land owner", it seems clear that a tenant of a tenant cannot be a tenant of the land owner, because the definition expressly says that a land owner does not include a tenant. Apart from this, the first proviso to sub section ( 1 ) of section 18 makes it clear that a tenant who has sublet the land or a portion, as the case may be, to any other person during the period of his continuous occupation is disabled from applying under section 18 unless during the period of his continuous occupation the tenant was suffering from legal disability or physical infirmity or if a woman was a widow or was unmarried. In other words, for example, a tenant who is a widow would be entitled to apply under section 18 even though she had sublet the land which she desired to purchase. No satisfactory answer was given by the learned counsel for the appellants as to what would happen if both the sub tenant and the widow applied to purchase. Both sides have relied on the scheme of the Act, but it seems to us that the scheme of the Act and the objects underlying the Act do not assist us in determining this question. It is well known that the main objects of the Act were to provide security to the tenants. settle tenants on land declared surplus and fix a ceiling on the total holding of land owners and tenants. It is also well known that it was a measure of agrarian reform. But these matters do 215 The answer must depend upon the language of section 18, fairly construed. If it was intended that a sub tenant should be entitled to purchase under section 18, we would have expected some provision in the Act to solve the difficulties which would arise if there was competition between the tenant and the sub tenant. There was some debate before us whether a tenant who has sublet would be treated to be in continuous occupation of the land during the period of sub tenancy within section 18 ( 1 ) (i), but we think that the proviso to section 18 (1 ) proceeds on the basis that the tenant is in continuous occupation even though he has sublet the land. It will again be noticed that under sub section (4)(b) of section 18 on the purchase price being deposited, the tenant becomes owner of the land. If the contention of the appellant was correct, the subtenant would become the owner under sub section (4)(b); but what will happen to the rights of the tenant ? No satisfactory answer was given to this question. Again it will further be noticed that sub section (5) of section 18 talks of the mortgage of the land but it does not speak of the mortgage the rights of a tenant. It seems to us that the High Court was right in holding that the legislature did not intend to confer any rights under section 18 on the sub tenant. The fact that by sub letting the tenant is also not able to apply under section 18 by virtue of the first proviso to sub section (1 ) cannot confer rights on the sub tenant because he must himself be a tenant of land owner within section 18 of the Act. Mr. Chagla says that it is a very hard case for the appellants have been in possession for over 30 years, but if it is a hard case it is for the legislature to intervene and provide for such hard cases. In the result the appeal fails and is dismissed. There will be no order as to costs. Y.P. Appeal dismissed.

The appellants, who had been in occupation of certain agricultural lands for more than 30 years as sub tenants., applied under section 18 of the Punjab Security of Land Tenures Act, 1953 to purchase the lands. The final authority under the Act, held that the 'appellants were not entitled to purchase the land. The appellants flied a writ petition in the High Court. The High Court held that the appellants being sub tenants were not entitled to apply under section 18 of the Act. Dismissing the appeal, this Court, HELD: The Legislature did not intend to confer any rights under section 18 on the sub tenant. The word 'landowner ' is defined in section 2(1) of the Act to mean a person defined as such in the Punjab Land Revenue Act, 1887. Under the latter Act, a landowner does not include a tenant. The definitions of the words 'tenant ' and 'land owner ', make it clear that 'a tenant of a tenant cannot be a tenant of the land owner, Further, [213 G; 214 E] (a) The first proviso to sub section (1) of section 18 makes it clear that a tenant who has sublet the land or a portion, as the case may be. to any other person during the period of his continuous occupation is disabled from applying under section 18 unless during the period of his continuous occupation the tenant was suffering from legal disability or physical infirmity or if a woman was a widow or was unmarried; [214 E F] (b) If it was intended that a sub tenant should be entitled to purchase under section 18, some provision in the Act would have been there to solve the difficulties which would arise if there was competition between the tenant and the sub tenant; [215 A B] (c) If the contention of the appellant was correct, the sub tenant would become the owner of the land under section 18(4)(b) on the purchase price being deposited. No satisfactory answer was given 'as to what will then happen to the rights of the tenant; and [215 C] (d) Section 18(5) refers to mortgage of the land but it does not refer to the mortgage of the rights of a tenant. [215 D]

vil Appeal No. 1442 (NT) of 1975. From the Judgment and Order dated 14.3.1974 of the Allahabad High Court in I.T.R. No. 437 of 1971. E.C. Agarwala for the Appellant. S.C. Manchanda, Ms. A Subhashini and M.B. Rao for the Respondent. The Judgment of the Court was delivered by PATHAK, CJ. This appeal by certificate granted by the Allahabad High Court is directed against a judgment of the High Court answering the following questions in favour of the Revenue and against the assessee in an income tax refer ence: "(1) Whether on the facts and in the circumstances of the case, and on a correct interpretation of the leasedeed 799 dated 22.8.1960, the Tribunal was fight in holding the profits of the Glass factory during the relevant accounting year accrued to the assessee company? (2) If the answer to the question No. 1 is in the affirmative, whether the Tribunal was right in holding that the entire profits and not one half of the profits of the glass factory during the relevant accounting year accrued to the assessee company?" The assessee, Messrs. Vibhuti Glass Works is a public limited company. It has a glass factory and also carries on other business. The accounts of the glass factory are closed on 31 March each year, while the assessee closes its ac counts on 30 September each year. We are concerned with the assessment year 1962 63. For several years the glass factory business had been suffering losses resulting in increasing debt. It took heavy loans from the Banaras State Bank, Varanasi, for which purpose its stocks and stores were hypothecated to the Bank. It also took loans from the Uttar Pradesh Government and the land, buildings and machinery were mortgaged accordingly. The assessee found it difficult to emerge out of its finan cial embarrassment. It discovered also that it needed cer tain equipment in order to produce better quality goods and also required funds for its working capital and for repaying loans to other creditors. It approached the industrial Finance Corporation, New Delhi, and the State Finance Corpo ration for financial assistance and the Industrial Finance Corporation agreed to grant a loan of Rs.20 lakhs on condi tion (a) that the State Government guaranteed repayment and (b) that the State Government postponed their charge under the mortgage deeds and the Industrial Financial Corporation was allowed to have the first charge. The State Government agreed to those conditions provided the assessee allowed the State Government to take over the running of the glass factory for a period of 20 years. The State Government also stipulated that if and when the profits of the business exceeded a prescribed limit, a share of those profits would go to the State Government. The assessee agreed to this arrangement and executed a document dated 22 August, 1960 incorporating the requisite conditions. For the relevant accounting period the glass factory business disclosed a profit of Rs.92,960 while the assessee suffered a loss of Rs.3,47,656 according to its separate profit and loss account. During 800 assessment proceedings for the assessment year 1962 63 it was contended by the assessee before the Income Tax Officer that the profit of Rs.92,960 earned by the glass factory business was not assessable in the hands of the assessee but in the hands of the Uttar Pradesh Government which had taken over the factory and was running the business. It was con tended that in any event only half of the profits could be included in the assessment of the assessee, the remaining profit being assessable in the hands of the State Government which was entitled to 50 per cent of the profits under the Deed dated 22 August, 1960. Both contentions were rejected by the Income Tax Officer, who held that the assessee was liable to be assessed in respect of the entire profits earned by the glass factory. He set off the profit against the loss declared by the assessee and computed a net loss of Rs.2,54,785. The assessee appealed to the Appellate Assistant Commis sioner of Income Tax, but without success. A second appeal by the assessee filed before the Income Tax Appellate Tribu nal was also dismissed. At the instance of the assessee the Appellate Tribunal referred the two questions of law set forth earlier to the High Court of Allahabad. The High Court considered the various provisions of the Deed dated 22 August, 1960 and answered both the questions in favour of the Revenue and against the assessee. It is apparent that this appeal must be disposed of on a consideration of the terms of the Deed dated 22 August, 1960. A perusal of the conditions set forth in that document discloses that the State Government was given the power to manage the glass factory business for a period of 20 years from the date it assumed possession. Although the Deed is described as a lease deed and it provides that the glass factory is demised to the State Government, in substance possession of the glass factory was transferred to the State Government only for the purpose of enabling it to manage and run the business. The High Court has given good reason for reaching that conclusion. Clause (c) of paragraph 7 of the Deed provides "that if upon the expiration or sooner determination of this demise it is found that the working of the factory has shown prof its after meeting the entire liabilities of the company the balance profits, after accounting for all charges and ex penses incurred by the State Government, shall be divided between the company and the Governor in equal proportion. " It was contended by the assessee before the High Court that the 801 income was diverted through an overriding title before it reached the assessee. The High Court. in our opinion, has rightly rejected the contention, holding that there was no overriding title and in fact it was a case of mere applica tion of the income. The proper test to be applied in such a case has been laid down by this Court in Commissioner of Income tax, Bombay City H vs Sitaldas Tirathdas, and we are satisfied that the present case is one where the income accrued to the assessee directly and was merely applied upon such accrual to discharge an obligation of the assessee. The entire income earned during the year under consideration was the income of the assessee and was merely applied by the managing State Government for the payment of the assessee 's debts. We are also in agreement with the High Court that the profits earned during the year under consideration were not sufficient for the State Government to enjoy a share in the profits in accordance with the terms of the Deed, and no question, therefore, arises of any part of the profits being regarded as assessable in the hands of the State Government. In point of fact, it appears that no part of the profits was actually taken by the State Government. In the result, the appeal fails and is dismissed but in the circumstances there is no order as to costs. N.P.V. Appeal dismissed.

The assessee Company had a glass factory besides other business. Since the glass factory business had been suffer ing losses for several years, resulting in increasing debt, the assessee took loans from the State Government and mort gaged the land, buildings and machinery. Later, under a deed executed by it the assessee allowed the State Government to take over running of the glass factory for a period of 20 years and permitted it to have a share of the business, if and when they exceeded a prescribed limit, as conditions for guaranteeing repayment of a loan of Rs.20 lakhs granted by the Industrial Finance Corporation. During assessment proceedings for the assessment year 1962 63, the assessee contended that the profits earned by the glass factory business during that period were not assessable in its hands, but in the hands of the State Government, which had taken over the factory and was running the business, and that, in any event, only half of the profit could be included in its assessment as the State Government was entitled to 50 per cent of profits under the deed. Rejecting the contentions, the Income tax officer held that the assessee was liable to be assessed in respect of the entire profits earned by the glass factory. The assessee 's appeals were dismissed by both the Appel late Assistant Commissioner and the Appellate Tribunal. On a reference made at assessee 's instance, the High Court af firmed the Tribunal 's finding that the entire profits of the factory, and not half of them accrued to the assessee. It also rejected assessee 's contention that the income was diverted through an overriding title before it reached the assessee. Dismissing the appeal of the assessee, this Court, 798 HELD: The present case is one where the income accrued to the assessee directly and was merely, upon such accrual, applied to discharge an obligation of the assessee. [.801B] Although the Deed executed by the assessee is described as a lease deed and provides that the glass factory is demised to the State Government, in substance possession of the factory was transferred to the State Government only for the purpose of enabling it to manage and run the business. [800F] The entire income earned during the year under consider ation was the income of the assesee and was merely applied by the managing State Government for the payment of the assessee 's debt, and there was no over riding title. The profits earned during the year under consideration were not sufficient for the State Government to enjoy a share in the profits in accordance with the terms of the Deed, and there fore, no part of the profits could be regarded as assessable in the hands of the State Government. In point of fact, no part of the profits was actually taken by the State Govern ment. [801C D] Commissioner of Income tax, Bombay City H vs Sitaldas Tirathdas, , relied on.

Civil Appeal No. 1199 of 1978. Appeal by Special Leave from the Judgment and order dated 6 3 1978 of the Madhya Pradesh High Court in M.P. No. 109/78. G. B. Pai and section section Khanduja for the Appellant. section K. Gambhir for Respondents 1 and 2 G. L. Sanghi, R. K. Jain and R. Ramachandran for Respondent No. 3 The following Judgments were delivered: DESAI, J. This appeal by special leave is directed against the order date 27th December 1977 made by the State of Madhya Pradesh granting a licence for a quasi permanent cinema to respondent No. 3 Prem Narayan son of Ganpatlal Chouksey, proprietor, Chitra Talkies, Lalbagh, Burhanpur (M.P.) against which a petition under 795 Article 226 of the Constitution by the petitioners was dismissed in limine by a speaking order by the High Court of Madhya Pradesh at Jabalpur on 6th March 1978. Third respondent made an application on 5th December 1975 for grant of a licence for a temporary cinema and the District Magistrate having jurisdiction issued a no objection certificate vide his order dated 10th February 1976 for a period of six months. This licence was renewed upto 30th June 1976 and there was a further renewal up to 30th September 1976. A subsequent application for renewal was turned down by the Distt. Magistrate by his order dated 29th June 1977 on the ground that Paras Talkies with permanent cinema licence which was closed, has now been functioning in the locality and, therefore, a renewal of the licence for a temporary cinema in the same locality would not be proper. Respondent 3 carried the matter in appeal to the State Government which by its order dated 27th December 1977 granted a licence for a quasi permanent cinema under the M.P. Cinemas Regulation Rules to the third respondent Present petitioners filed a petition under Article 226 questioning the validity of the aforementioned order of the State Government conceding, inter alia, that they were the residents of the locality and that they had objected to the grant/renewal of licence on the ground that there is a mosque a madrasa and a temple in the vicinity or the place where the cinema house is to be constructed, and even though their objections were upheld by the licensing authority, the District Magistrate, they were not heard in the appeal preferred by the third respondent and, therefore the order of the first respondent State of Madhya Pradesh suffers, inter alia, from the vice of violation of the principles of natural justice. The High Court was of the opinion that District Magistrate was not influenced by the fact that there was a mosque, and a temple in the vicinity of the place where the proposed cinema house was to be constructed but he was influenced by an extraneous consideration that a cinema having a permanent cinema licence having been re opened in the locality there was no need for a cinema house with a 'temporary ' licence and that it being a matter left to the subjective satisfaction of the State Government, the State Government on being satisfied that there was no impediment to the grant of such a licence, was perfectly justified in granting the same and, therefore, it is not a fit case for the interference of the High Court. The appellants thereupon filed this appeal by special leave. Mr. G. B. Pai, learned counsel who appeared for the petitioners, contended that if before the grant of a quasi permanent cinema 796 licence to the third respondent the appellants filed their objections which were taken into consideration by the Distt. Magistrate, the licensing authority, and if the Distt. Magistrate was impressed by the objections and, therefore, turned down the request for 'temporary cinema licence, in an appeal against this order preferred by the third respondent, the appellants as objectors should have been heard and the decision arrived at by the State Government appeal at their back was violative of the principles of natural justice and the order granting licence for quasi permanent cinema by the State Government is invalid. Before we examine the contention canvassed on behalf of the appellants it is necessary to glance at the relevant provisions of M.P Cinemas (Regulation) Act, 1952 ( 'Act ' for short). Section 3 imposes a restriction on exhibition by means of cinematograph at any place other than a licensed place under the Act in compliance with the restrictions or conditions imposed by such licence. Section 4 nominates the Distt. Magistrate as the licensing authority. Section 5 provides for conditions subject to which licence may be granted. Sub section (3) of section 5 provides for an appeal at the instance of a person aggrieved by the decision of a licensing authority refusing to grant a licence under the Act to the State Government within the prescribed time. Section 6 confers power on the State Government or the local authority to suspend exhibition of films. Section 7 prescribes penalties for breach of the provisions of the Act. Section 8 confers power to revoke a licence under certain circumstances. Two things emerge from the Act. Firstly, that the detailed provisions for the grant of a licence at three distinct stages by the licensing authority in the process of licensing a cinema house, viz., (i) no objection certificate for the site on which the cinema house is to be constructed; (ii) licence for the building conforming to the rules where films are to be exhibited; and (iii) licence for exhibition of films, are made in the rules and there is no reference to any of the three licences in the Act. Secondly, appeal is provided against the order of a licensing authority only at the instance of a person aggrieved by the decision of the licensing authority refusing to grant a licence. The Act does not confer any right of appeal on a person who might have raised objections before the licensing authority against the grant of a no objection certificate or a licence, as the case may be. This last aspect is very relevant because the entire submission is based on a contention that the appellants who had objected to the grant of a no objection certificate to the third respondent and had succeeded in persuading the licensing authority to refuse the grant of no objection certificate to the third respondent, yet in the appeal preferred by the 797 third respondent under sub section (3) of section 5 the State Government did not give any opportunity to the successful objectors and decided the appeal at their back and thus the decision was rendered in violation of the principles of natural justice. Next a reference to the relevant rules of M.P. Cinema (Regulation) Rules, 1972 ( 'Rules ' for short), is necessary. Rule 3(2) provides that any person desirous of erecting a cinema or converting existing premises into a cinema shall first make public his intention to do so by exhibiting a notice in the prescribed form on a board on the proposed site in such position that it can be plainly seen from the public thoroughfare upon which the site of such proposed cinema abuts. This rule also prescribes the size of the board, the language in which the notice is to be published, etc. Sub rule (3) of rule 3 provides that such a person shall also give a similar notice in writing to the licensing authority, viz., the Distt. Magistrate and make an application to him for the grant of a no objection certificate specifying therein whether the application is in respect of a permanent cinema or a touring cinema. Rule 4 provides that on receipt of notice as envisaged by Rule 3, the licensing authority shall, at the cost of the applicant, notify the public such intention in such manner by publication in newspapers or otherwise that may deem fit for the purpose of inviting objections. It is also obligatory for the licensing authority to issue a notification inviting objections specifying therein the period within which the objections shall be lodged. Rule 5 provides that the licensing authority shall on the expiry of the period for receipt of the objections, submit a report to Government in the prescribed form along with his recommendation whether a no objection certificate shall be granted or not. Sub rule (2) of rule 5 provides that Government may, on consideration o. the report of the licensing authority, grant permission for the issue of no objection certificate to the applicant or may refuse to grant the same. Rule 6 provides that without prejudice to the right of the licensing authority to refuse or to grant a cinema licence under rules 101 and 102 ', the licensing authority may, with the previous permission of the government, grant a certificate to the applicant that there is no objection to the location of the cinema at the site notified by the applicant under rule 3. Sub rule (2) of rule 6 provides that such a no objection certificate shall be valid for a period of two years from the date of issue in the case of permanent cinemas and six months in the case of touring cinemas. Chapter VII of the Rules provides for cinema licence. Rule 100 provides that an application for a cinema licence shall be accompanied, amongst others, by a copy of the no objection certificate issued under rule 6. Rule 101 confers power on the licensing authority 798 to grant a cinema licence on being satisfied that all the relevant rules have been complied with and the licence may be granted on such terms and conditions and subject to such restrictions as the licensing authority may determine. There is a proviso to rule 101 which reads as under: "Provided that a touring cinema licence shall not be beyond the district of issue and ordinarily touring cinema licences shall not be granted for places where there is already a permanent or a quasi permanent cinema, but the licensing authority may in its discretion permit a touring cinema to operate at a place where there is already a permanent or quasi permanent cinema on occasions such as fairs and melas or when the touring cinema exhibits films of a kind different from those exhibited by non touring cinemas such as educational films or where it caters for a different public". In view of the proviso, it would not be correct to say that District Magistrate was influenced by an extraneous consideration, namely, re opening of Paras Cinema with a permanent cinema licence while rejecting the application of third respondent for renewal of his licence by the order dated 29th June 1977. Rule 104 provides that a 15 permanent cinema may be licenced for any period not exceeding one year and a quasi permanent cinema or a touring cinema may be licenced for any period not exceeding six months. A perusal of the relevant provisions of the Act and the Rules extracted above will show that there are various stages through which an application for a cinema licence has to be processed. It also transpires that the Rules envisage issuance of a licence for a permanent cinema and quasi permanent cinema as well as a touring cinema. Cinema in this context has been defined to mean any place wherein an exhibition by means of cinematograph is given. Rule 3 envisages construction of a cinema house and as a first step, selection of a site where the cinema house is to be located. Selection of the site and its clearance by the licensing authority by the issuance of a no objection certificate is an important step to be taken in the direction of finally constructing a cinema house and obtaining a licence for the same. In the facts of this case the application is for a quasi permanent cinema licence. When any person desires to erect a cinema meaning thereby a place where an exhibition by means of cinematograph is to be given, he must apply for a no objection 799 certificate in respect of the site where the cinema house is to be constructed. When such an application is received, it is to be advertised in the manner prescribed inviting the public to file objections. After considering the objections the licensing authority has to decide whether to grant or refuse the no objection certificate. This scheme emerges from the combined reading of rules 3, 5 and 6. Chapter III in the Rules prescribes rules in respect of the building to be used as a cinema house. But before one proceeds to construct the cinema, obtaining of a no objection certificate relevant to the site on which cinema to be constructed is a sine qua non. The grievance of the appellants is that when their objections were invited before issuance of a no objection certificate and they filed the same, the Distt. Magistrate as the licensing authority was persuaded to accept the objections and reject the application for a no objection certificate and thereafter when under section 5(3) of the Act respondent preferred ar. appeal against the refusal to grant the no objection certificate, the appeal was decided at the back of those who had not only filed objections but whose objections had prevailed with the licensing authority and, therefore, the order granting the no objection certificate is violative of the principles of natural justice. There is a two fold fallacy in this submission. Respondent 3 has been granted a quasi permanent cinema licence by the State Government allowing his appeal against the order of the E Distt. Magistrate refusing such a licence. The order impugned by the third respondent in the appeal before the State Government is Annexure 'E ' dated 29th June 1977. A perusal of this particular order would show that initial application for no objection certificate was made by the third respondent on 5th December 1975. An advertisement was issued in 'Nai Duniya ' dated 5th January 1976 by the licensing authority that an application for a temporary cinema licence akin to quasi permanent cinema licence has been received and that any one who desires that no objection certificate should not he given may file his objections. After considering those objections no objection certificate was granted by order dated 10th February G. 1976. No exception appears to have been taken to this order granting no objection certificate. English rendering of the order raised some doubt whether a no objection certificate was granted or a quasi permanent cinema licence was granted. Original file was called. Simultaneously, a certified copy of the original order in Hindi was shown to us at the hearing of the appeal which clearly H. shows that a no objection certificate was granted limited to the duration of six months. Thereafter a quasi permanent cinema licence 800 was granted. This licence was renewed twice over up to and inclusive of 30th September 1976. Subsequently by the impugned order dated 29th June 1977 this licence was not renewed. Let it again be made clear that the application was for a quasi permanent cinema licence. This order refusing to renew quasi permanent cinema licence was challenged by the third respondent before the State Government and which appeal was allowed giving rise to the petition by the appellants. When an application for no objection certificate is made, objections have to be invited in the prescribed manner. There can conceivably be hundreds of objections. There is no question of then giving a personal hearing to each objector. If after taking into consideration the objections. a no objection certificate is granted, there ends the matter subject, of course, to any properly constituted legal proceedings, conceivably a writ petition under Article 226. But sub section (3) of section 5 of the Act is unambiguous when it provides for an appeal only at the instance of a person aggrieved by the decision of the licensing authority refusing licence. A fortiori, every objector to renewal is not entitled to file an appeal if licence is granted rejecting his objections. Nor in an appeal by the aggrieved person within the meaning of section 5(3) every objector to the grant of no objection certificate is entitled to be joined as a party respondent or that each objector is entitled to notice of hearing of the appeal. however, the grievance of the appellants it without merits because initially when no objection certificate was applied for they did not object and one who has not objected cannot subsequently make a grievance [see Jashbhai Motibhai Desai vs Roshan Kumar, Haji Bashir Ahmed & others(1)]. The second fallacy is that rules 3 to 6 envisage an advertisement of an application for a no objection certificate and inviting objections 'hereto and disposal of such an application. There is, however, nothing in the Act or the rules which requires the licensing authority to invite objections before grant of a quasi permanent cinema licence. The right to object is at the initial stage when a no objection certificate is applied for by the intending applicant for such a certificate. But there is no provision for inviting objections when the application is for a permanent or quasi permanent cinema licence or a touring cinema licence. There is no provision in the Act or Rules which requires advertisement of such an application inviting objections and 801 consideration of the objections before grant of a cinema licence. In A this case the application which was turned down by the Distt. Magistrate was one for renewal of a quasi permanent cinema licence. The application for a no objection certificate and granting of the same had passed muster long before on 10th February 1976 and appellants had not raised any objection to the grant of no objection certificate. When the present appellants objected to the renewal of a quasi permanent cinema licence it was not the stage for grant of a no objection certificate but it was the stage of renewal of quasi permanent licence subsequent to the stage of granting of a no objection certificate, when there was no statutory obligation on the licensing authority to invite objections nor were the appellants entitled to file objections and nor were they entitled to be heard. A right to notice by reason of any rule of natural justice, which a party may establish, must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed. If the duty to give notice and to hear the party is not mandatory, the actual order passed on a matter must be shown to have injuriously affected the interest of the party which was given no notice of the matter [see Cosmosteels Private Ltd. vs Jairam Das Gupta & Ors. There was no statutory or mandatory duty to hear the appellants. There fore, there is no substance in the grievance that before granting renewal of such licence the State Government in the appeal filed by the third respondent had not heard them and that such a decision was rendered in violation of the principles of natural justice. Mr. Sanghi, learned counsel for the respondents, wanted to contend that the appellants are not acting bona fide in vindication of their own rights but they are a fence or a cloak for the owners of Paras Cinema, the holders of permanent cinema licence in the locality, and the appellants thus being proxies for such a trade rival, they have no locus standi to file the objections. Mr. Sanghi heavily drew upon the observations of this Court in Jashbhai Motibhai Desai 's case (supra) to make good the submission. Undoubtedly, in the aforementioned case this Court in terms held that a rival in cinema business has no locus standi to question the validity of the order under which the other person has been granted a cinema licence, but as the only contention raised on behalf of the appellants does not commend to us and, therefore, the appeal is likely to fail on that ground alone, it is not necessary to explore this contention advanced on behalf of the respondents. 802 There was only one point raised in this appeal and as there is no merit in it, the appeal fails and is dismissed but with no order as to costs. PATHAK, J. I agree that the appeal should be dismissed, but on a very short ground. Rules 3 to 6 of the Madhya Pradesh Cinemas (Regulation) Rules, 1972 relate to the grant of a "no objection" certificate, that is to say a certificate that there is no objection to the location of the cinema at the site proposed by the applicant. The Rules contemplate the filing of objections by local residents. That is the stage at which opposition to the establishment of a cinema at the proposed site is specifically provided for. Any person opposing the establishment of a cinema at the proposed location must do so before a "no objection" certificate is granted. The appellants did not file any objection at that stage "no objection" certificate was granted to the third respondent. Thereafter, when the third respondent applied for a cinema licence, the appellants for the first time opposed the application. They opposed it on the ground that there was a mosque, a "madarsa" and a temple in the vicinity and that the cinema, if permitted, would constitute an obstruction and annoyance to the local residents. Inasmuch as those grounds were available to them during the proceedings for considering the grant of a "no objection" certificate, and they did not file any objection, they cannot now be permitted to plead a right to oppose the grant of a cinema licence. Had they apposed the grant of the "no objection" certificate and their objection had made out a good case, it is possible that the "no objection" certificate would have been refused, and in that event the applicant would not have applied for a cinema licence. on that short ground the appeal must fail. That being so, I need not consider the further question whether in an appeal filed by an applicant, who has been refused a cinema licence, the local residents, who had objected to the grant of a "no objection" certificate and had been over ruled, can contest the claim of the applicant to a cinema licence. Rule 102 empowers the licensing authority to refuse a cinema licence if the cinema is likely to cause obstruction, inconvenience, annoyance, risk, danger or damage to residents, or passers by in the vicinity of the cinema. Rule 6 declares that the. grant of a "no objection" certificate is without prejudice to the right of the licensing authority to refuse a cinema licence under Rule 102. I leave the question open whether a person who has objected to the grant of a "no objection" certificate when that grant was under consideration 803 can subsequently oppose the grant of a cinema licence on the same grounds which he took against the "no objection" certificate. The appellants not being entitled to challenge the grant of the cinema licence to the third respondent, I need express no opinion on the validity of that grant. The appeal is dismissed but without any order as to costs. N.V.K. Appeal dismissed.

The petitioner 's son (the detenu) was detained under section 8(2) of the Jammu and Kashmir Public Safety Act, 1978 by an order of the District Magistrate, Anantnag, Sections 8(1)(a)(1) and 8(2)2 of the Act state that the Government or the District Magistrate may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of the public order, make an order directing that such person be detained. The detenu was informed that the order of detention had been passed with a view to preventing him from acting in any manner prejudicial to "the maintenance of public order". The grounds of detention amongst others stated that the detenu had (i) indulged in subversive activities (ii) organised the burning of religious places to create chaos in the State (iii) disturbed the public order (iv) tried to elicit public opinion in favour of a person sentenced to death and that his remaining at large was prejudicial to the maintenance of public order and also the "security of the State". The petitioner challenged the grounds of detention as vague. Allowing the petition under Article 32 of the Constitution and directing the release of the detenu forthwith. ^ HELD: An attempt on the part of any citizen to elicit public opinion in favour of a person who has been sentenced to death and to save him from the gallows cannot be considered as acting in any manner prejudicial to the security of the State because it cannot be considered as an attempt to overthrow or overawe the Government established by law in the State. The fact that the detenu had sent hand bills and booklets to arouse the sentiments of the people against the proposed execution of Z. A. Bhutto cannot be considered as an act prejudicial to the security of the State because the State of Jammu and Kashmir had nothing to do with the proposed execution. The other grounds are also vague in so far as the question of security of the State is concerned. [1111 B E] A combined reading of the order of detention and the grounds furnished to the detenu shows that at the time when the order was made, the District Magistrate either had no material relevant to the security of the State on which he could act or even if he had information of those grounds, he did not propose to act on it. He, however, tried to support the order of detention by stating in the course of the grounds that by the detenu remaining at large, the security of the State was likely to be prejudiced. [1111 G H] 1105 The expressions "law and order", "public order" and "security of the State" are distinct concepts though now always separate. Whereas every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the "security of the State." [1112 A B] Romesh Thapper vs The State of Madras, [1950] S.C.R. 594 at p. 600 applied. An act may affect law and order but not public order just as an act may affect public order but not security of State. It is for this reason that the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order ' separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to an illegal one. [1113 C D] Dr. Ram Manohar Lohia vs State of Bihar & Others, ; Bhupal Chandra Ghosh vs Arif Ali & Others ; and Satya Brata Ghose vs Arif Ali

: Criminal Appeal No. 17 of 1975. Appeal by Special Leave from the Judgment and Order dated 7 6 1974 of the Himachal Pradesh High Court in Criminal Appeal No. 40/73. Hardyal Hardy and P.P. Juneja for the Appellants. Badri Das Sharma and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by SARKARIA, J. This appeal by special leave is directed against a judgment, dated June. 7. 1974, of the High Court of Himachal Pradesh, whereby it upheld the conviction of Rama Nand accused under Section 302, Penal Code, and that of the co accused Shish Ram and Kali Datt under Section 201, Penal Code, and also the sentences awarded to each of them by the learned Sessions Judge, 446 Mandi. The prosecution story, as it emerged from the record, was as follows: Sumitra deceased, aged 19 years, was the daughter of Som Krishan (P.W. 33). Rama Nand, appellant is her husband and Shish Ram, appellant 2, is her father in law while Kali Datt appellant 3, is the younger brother of Rama Nand. Sumitra 's father wished to see his daughter highly educated, and employed in Government service and married to a suitable, highly educated person, settled in life. Sumitra had passed Higher Secondary Examination and wanted to pursue her studies further according to the wishes of her father. About two years before Sumitra 's reported death, Shish Ram appellant approached Som Krishan (P.W. 33) and persuaded him to give Sumitra in marriage to his son, Rama Nand. While negotiating this matrimonial alliance, Shish Rama told Som Krishan that his son was suitably employed on a Government job in the Office of the Deputy Commissioner, Kasumpti. He further falsely represented to Som Krishan that his son, Rama Nand was a graduate. Believing this representation to be true, Som Krishan about 1 1/2 or 2 years before Sumitra 's murder in question, married her to Rama Nand; Before this marriage it was settled by Som Krishan with Shish Ram and Rama Nand accused that even after her marriage, Sumitra would continue to pursue further studies and take up employment as a teacher. After the marriage, her father got his daughter, Sumitra, employed as a teacher in Village Nursery School at Chanyana which was situated near her parents ' village. While teaching at Chnayana, she continued to reside with her parents. She used to visit village Jherwin occasionally to be in the society of her husband who also used to come to Jherwin from Kasumpti. The accused persistently demanded that Sumitra should give up her employment at Chanyana, and start residing permanently and continuously in her matrimonial home at Jherwin. Sumitra tenaciously refused to do so. Rama Nand wrote several letters to Sumitra urging her to give up her adamant attitude. These letters furnished evidence of a strong motive for Rama Nand to put an end to the life of Sumitra. Rama Nand was employed as a Clerk in the Office of the Deputy Commissioner Kasumpti. On May 12, 1972, he came to Jherwin from Kasumpti. He had earlier written to his wife, Sumitra, strongly urging her to come to village Jherwin. On May 13, 1972, Sumitra came to Rama Nand 's house at Jherwin and stayed with him in his room on the night between 13th and 14th May, 1972. The other 447 rooms of the house were in occupation of the other members of Shish Ram 's family. Thereafter, on May 14, 1972, she disappeared from the house of the accused. The accused gave out that Sumitra had gone towards the Sutlej river on the pretext of attending to the call of nature; that thereafter her Salwar and shoes were found on the bank of the river, which indicated that she had jumped into the river and committed suicide. After pretending to make a search for her body in the river and nearabout, Shish Ram on May 16, 1972, went to Police Station Karsog at 5.30 p.m. and lodged a report (exhibit PAQ). It was recorded by Head Constable Nand Lal. After recording it in the Roznamacha, the Head Constable read it in the presence of one Inder Pal to the informant, who, after hearing the same to be correct, signed it in Hindi and his companion Inder Lal signed it in English. As this report, according to the prosecution, shows that an attempt was made by Shish Ram accused to lay a false trail and manufacture false clues as to the cause of the death of Sumitra and to screen the offence, it is necessary to reproduce the material parts of that report (rendered into English), hereunder: . "my daughter in law Smt. Sumitra Devi aged about 18/19 years, was married about 1 1/2 years ago, to my son Rama Nand who is employed in the office of D.C. Kasumpti as a clerk. Sumitra Devi herself was employed as a Mistress in Nursery School, Chanyana and was residing with her parents. Whenever my son used to come home on leave, she also used to visit her house at such time. Similarly my son Rama Nand had come on leave to his house on 12 5 72 and in the evening of 13 5 72, my daughter in law, Smt. Sumitra Devi had also come to his house. As usual, because of Sunday holiday, in the morning on 14 5 72, myself, my daughter in law and other members of the family were planting chilly seedlings in the fields near our house. My son (Rama Nand) was lying in bed on account of stomach trouble. After plantation work, at about 9/10 a.m. my daughter in law, Smt. Sumitra Devi along with Sheela Devi aged about 7 years, who is daughter of my brother, had gone downward on the pretext of easing herself. After some time, Sheela returned home and reported that she had been turned back from the way by her aunt. Sumitra Devi, who had gone ahead towards the river side. For some time it was believed that she might have gone to answer the call of nature. The river is about 2 furlongs from my house towards downside. When sufficient time passed and she did 448 not return home, then calls were given hither and thither and search was also started but her whereabouts could not be known. After a thorough search on the Sutlej river bank, the Salwar and shoes of Smt. Sumitra were found which Smt. Sumitra was wearing at the time of her going that side. This created a suspicion that she might have committed suicide by jumping into the river. She was searched at the river bank as also in the nearby villages. but her dead body was not found, nor any clue of her going is available. Sumitra was married in a good family and her character was also good, her relations with her husband were cordial. No quarrel on that day or prior to that, took place between her and my son, nor is there any reason for her disappearance. I have come to report, which may be recorded. After locating her alive or dead, separate report will be lodged. " Daulat Ram, Station House Officer (P.W. 38) then visited the scene of occurrence on May 13, 1972. He was not satisfied about the correctness of the information given by Shish Ram accused. He, therefore, got a case under Section 364, Penal Code, registered. Shis Ram accused produced before him the Salwar (exhibit P 14) and shoes (exhibit P 15/12) which, according to Shish Ram 's report, belonged to Sumitra deceased and were found lying on the river bank. The investigator also prepared a rough sketch of the spot where these clothes and shoes were stated to have been found. Som Krishan upon receiving the information, suspected that her daughter had been murdered at the instance of Rama Nand and others. Som Krishan reached the spot and made enquiries. Rama Nand and Shish Ram accused were arrested by the Investigating Officer on June 5, 1972. The Investigating Officer took into possession the Locket chain (exhibit P 1) and the watch (exhibit P 2) belonging to the deceased from the room which was in the occupation of Rama Nand, in the deceased from the room which was in the occupation of Rama Nand, in the presence of Kanshi Ram and Hira Mani and prepared the Memo (exhibit P A) in this behalf. Rama Nand accused, whilst in police custody, produced Sumitra 's clothes (exhibit P 5 to exhibit P 10) which were taken into possession by the Investigator in the presence of Mastu and Hari Ram, witnesses (vide exhibit P Y). These clothes, according to the prosecution, were the same which Sumitra was wearing when she arrived at the house of Rama Nand accused on May 13, 1972. 449 On June 5, 1972, a legless and armless dead body in a highly decomposed state was found at a distance of four kilometers down stream on the bank of the river Sutlej near village Randaul. Kali Datt appellant was found near that skeleton in the early hours or June 5,1972. He dragged the skeleton from the river upto some distance. It appeared that dogs etc. had eaten away the flesh. A part of the skull was found in tact, while the remaining part of it was lying at some distance. On receiving information, Som Krishan (P.W.33) and his brother 's wife, Laxmi (P.W. 2), came and identified the skeleton to be that of Sumitra. There was some flesh on the buttock portion and there was a mark on it. According to these identifying witnesses, this mark was that of a burn which Sumitra had received during her infancy. One of the teeth found in the inaudible was carious, while another tooth was jutting out. Daulat Ram got the dead body measured from shoulder to the cut portion of the thies by Mehar Chand. The measurement came to 2 ' 4". Daulat Ram prepared the inquest report (exhibit P/F) which was attested by Kundan witness. He sent the dead body along with the inquest report (exhibit PF) to Simla for post mortem examination. The dead body reached the Hospital at 1 p.m on June 7, 1972. There, they directed the police to take the dead body to Ripon Hospital. The post mortem examination. was conducted by Dr. J. R. Sharma (P.W. 14) on the following day. The post mortem report was handed over to the police by the Doctor on June 21, 1972. A few components of the skeleton, including the mandible, were sent to the Dental Surgeon, Dr. R. section Pathania (P.W. 15) and Radiologist, Dr. M. L. Ahuja (P.W. 16) for examination and opinion. These Doctors, however, opined that the mandible belonged to a child of not more than 10 years of age. The components of the skeleton were, also, sent to Dr. O. P. Bhargave (P.W. 31), Professor of Anatomy in the Medical College of simila. His opinion about the age of the deceased was also the same. The Doctor could not determine the sex of the skeleton. On August 24, 1972, a Paranda (cotton headtail), alleged to be of Sumitra deceased was recovered from the jungle of Ghangar. Some human hair were found entangled in the Paranda. These hair were sent for comparison with the hair of the deceased found embedded in her Dupatta. The forensic expert opined that the two sets of hair belonged to one and the same person. After investigation, the four accused, namely, Rama Nand, his father Shish Ram, his brother Kali Datt and Shish Ram 's brother Kesar Chand, were sent up before a Magistrate who committed them 450 for trial to the Court of Session. At the trial, in his examination under Section 342, Rama Nand admitted that after her marriage, Sumitra got employment as a teacher. He, however, denied the prosecution allegation that he and his father were opposed to her employment as a teacher. He expressed ignorance as to whether there was any settlement between his father, Shish Ram, and Som Krishan Shastri, father of Sumitra that she would continue her studies even after the marriage and would be free to take up service as her career. He added that his matrimonial alliance with Sumitra was not negotiated and settled in his presence. He admitted that the letters dated December 13, 1971, December 16, 1971 and May 9, 1972 (the English rendering of which is marked exhibit PAH, exhibit PAB, and exhibit PC, respectively) were written by him to Sumitra, and that the letter (exhibit PAJ) dated October 14, 1971, was written by him to his father in law. Som Krishan Shastri (P.W. 33). He further admitted that on May 13, 1972, Sumitra came to his house in village Jherwin from her parents ' place, and that she was then wearing the golden chain (exhibit P 1), wrist watch (exhibit P 2), Dupatta (exhibit P 5), suit (exhibit P 6 and exhibit P 7), socks (Ex. P 8 and 9), banian (Ex. P 10) and was carrying the basket (exhibit P 11) and umbrella (exhibit P 12). He, however, added that when she (Sumitra) reached home on May 13, 1972 with the articles mentioned above, she was wearing pink ribbon on her head and not any threadbunch like exhibit Question No.9 put to him was: "It is in prosecution evidence that on May 14, 1972 Sumitra was not seen at your house or in the village at Jherwin at all or thereafter. What have you to say?" He replied: "On 14 5 72 morning at about, say upto 11 a.m., she was working in the field at Jherwin and thereafter she was not seen there and later on I was arrested and so I cannot say about her whereabouts." He admitted that his father Shish Ram had lodged the report (exhibit PAQ) in the Police Station, Karsog. When the circumstance appearing in the prosecution evidence, "that after the occurrence on May 16, 1972, he (Rama Nand) went away to Simla from Jherwin and returned home three or four days thereafter" was put to Ramanand, he replied: "It is wrong. I went to Simla on 17 5 72 evening and returned on 19th morning". He denied that he and his father implored Som Krishan Shastri that he should save them from the police at Jherwin. When the negative circumstance appearing in evidence, to the effect that the Salwar (exhibit P 14) was not of Sumitra, was put to him, he asserted that the Salwar (exhibit P 14) was that of Sumitra; and that his father had shown the Salwar (exhibit P 14) indicating that his daughter in law, Sumitra had gone in the river when the (Ramanand) was weeping. In reply to the last question, Rama Nand narrated more or less the same story which was given by them (accused) to 451 the police in the Report, PAQ. Among other things, he stated: "It was found on the river side that her Salwar (exhibit P 14) and shoes (exhibit P 15) were lying by the river bank giving indication that she had jumped into the river. Then we were in mourning and the villagers also verified that Sumitra was seen going to the river". Shish Ram accused admitted that Sumitra had come to their house at Jherwin on May 13, 1972 and had disappeared on May 14, 1972. He admitted having lodged the report (exhibit PAQ) in the Police Station, Karsog. He admitted that he had produced the Salwar (Ex. P 14) and shoes (exhibit P 15) before the police during investigation. He also maintained that the Salwar (exhibit P 14) belonged to Sumitra. He denied that he and his co accused were threatening to teach Sumitra and her father the lesson of life for keeping Sumitra employed against their wishes at Chanayana. He repeated the substance of the story which he had earlier stated in the report (exhibit PAQ), and reiterated that since Sumitra 's Salwar and shoes were found on the river bank, she had either jumped into the river or run away somewhere. The learned Additional Sessions Judge by his judgment, dated December 1, 1973, convicted Rama Nand under Section 302, Penal Code, and sentenced him to rigorous imprisonment for life. He further convicted Kali Datt and Shish Ram accused under Section 201, Penal Code, and sentenced each of them to one year 's rigorous imprisonment and a fine of Rs. 500/ . Keshar Chand accused was given the benefit of doubt and acquitted. The appeal by the convicted persons was dismissed by the High Court as per its judgment, dated June 7, 1974. Hence this appeal by special leave. The conviction of the appellants is based entirely on circumstantial evidence. In convicting Rama Nand, appellant under Section 302, Penal Code, for the murder of his wife, Sumitra, the courts below have concurrently relied upon these circumstances which, according to them, had been established by the prosecution. (1) Rama Nand accused had a strong motive to murder his wife, Sumitra. (2) Sumitra was last seen alive with Rama Nand, appellant in the family house at Jherwin on the night between 13th and 14th May, 1972. The other two co accused were also present in the same house (3) (a) Rama Nand and the other co accused falsely gave out that she had committed suicide by jumping into the river. They 'planted ' a Salwar and a pair of shoes on the bank of the Sutlej and gave out that they belonged to the deceased, and Shish Ram lodged 452 a false report with the police to the effect that she had committed suicide by jumping into the river. The Salwar and the shoes, which had been 'planted ' there to manufacture false clues by the accused, did not belong to Sumitra, and the accused have falsely asserted that these articles belong to the deceased. (b) The story given out by the accused persons that upto 11 a.m. on May 14, 1972, Sumitra was planting chillies along with Sheela and other members of the family of the accused, was false. (4) The gold chain (exhibit P 1) and the watch (exhibit P 2) which Sumitra used to wear on her person all the 24 hours, and the clothes (exhibit P 5 to P 10) which she had on the person and the basket (exhibit P 11) and umbrella (exhibit P 12) which she was carrying when on the evening of May 13, 1972 she came to the house of the accused at Jherwin, were recovered from the house of the accused. (5) Some days after the occurrence, one Paranda was found from the jungle near this village. There was a bunch of hair in the plaited tail of this Paranda. The tail appeared to have been cut. These hair sticking in the Paranda and those found entangled in the Dupatta of the deceased were according to the Forensic Expert of one and the same person. (6) A legless decomposed corpse was recovered from the Sutlej near village Randol in a mutilated condition. From a burnt mark on the flesh sticking to the buttock of the corpse it was identified as that of Sumitra, deceased. The High Court further held that even if any doubt remained with regard to the identity or recovery of the corpus delicti, the telling circumstances otherwise complete the chain of evidence to establish beyond doubt that Sumitra had been murdered and the charges had been established against the accused as held by the trial court. In the result it dismissed the appeal of the accused respondents. Shri Hardayal Hardy, learned counsel appearing for the appellants contents that these circumstances have not been satisfactorily established. He has placed great emphasis on the evidence of the medical experts, according to which the mutilated corpse found at Randol was that of a child, aged about 8 or 9 years. It is submitted that the dead body found was not that of Sumitra deceased, and as a result, the courts below were not justified in holding that the death of Sumitra had been established by the prosecution. On the other hand, the learned counsel for the State has argued in support of the judgment of the High Court. 453 It is well settled that where the inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else. The first circumstance which has been found to be established by the courts below against the appellant is that he had "a very strong motive" to commit the murder of Sumitra. To substantiate this fact, the prosecution produced four letters written by Rama Nand appellant. There are: exhibit PAJ, exhibit PAH, exhibit PAB/1 and exhibit PC. The accused also tendered in evidence the letter (exhibit DA) dated November 14, 1971 written by Som Krishan to Sumitra. As already mentioned, Rama Nand accused has admitted that the letters (exhibit PAJ, PAH, PAB/1 and P.C.) were written by him. exhibit PAJ purports to have been written by him from village Jherwin on October 14, 1971. In this letter, Rama Nand very clearly informed his father in law that his father Shish Ram was not in favour of Sumitra taking up service and residing away from the accused 's house at Jherwin. In this letter, Rama Nand urged his father in law that the latter should either come to Jherwin along with Sumitra or send her alone. This letter also indicates that Sumitra was persisting in taking up service elsewhere against the wishes of the accused persons. Chronologically, the next letter is exhibit DA dated November 14, 1971. It is addressed by Som Krishan to his daughter, Sumitra. In this letter, the father informs the daughter that he had obtained her appointment letter and she would be required to join by the 17th to start the Nursing School at Balwari. He wanted her to come to his house to take up the appointment. In this letter, he also wishes her daughter to convey to Rama Nand appellant and his brother, Kesar Chand (acquitted accused) that they should agree to Sumitra 's taking up this employment and that they should further bring round Shish Ram by reminding him that they had earlier consented to her taking up Service. This letter further indicates that Sumitra was much distressed because of the hostile attitude adopted by her in laws towards her. To console her, the father wrote: "Don 't worry. Whatever God does is good. Have self confidence and do not repent on any failure". The third letter, dated December 13, 1971, (exhibit PAH), written by Rama Nand to Sumitra, shows that the opposition of the appellant, 454 his father Shish Ram and brothers to Sumitra 's taking up service away from the matrimonial home, had passed from the serious to the sardonic stage. It starts with the words: "Wish you happy luxury !" Read in accord with the tenor of the letter, it conveys a biting ironical taunt. These words were capable of being construed as conveying an innuendo that she was merry making de hors the matrimonial home in an extra marital way. May be, the appellant was doubting her fidelity. He informs her that he had visited Jherwin in the hope that he would join her there, but this hope did not materialise. He complains against this attitude of neglect on the part of his wife when he says: "Today you have not seen to my condition, and have defamed me. To whom should I blame ? It is the wind and to which side it blows it must do something. I was thinking to save (you) from this wind. " He further reproaches and upbraids her: "You did not think over it seriously and you did not care for it nor others. You have taken it as a prestige issue. I cannot do anything so long I am not heartily happy and I weep to my fate. " He then warns her in a contemptuous and peremptory tone: "It would be better that you should resign your job now and come down here . If you intend to reside with me, then you should agree to my words. otherwise it will be a dog 's life. You should either come to this place or to village Jherwin after resigning the job and from there you may come to Simla on any day. As you know, a friend in need is a friend in deed. When this is lost, one cannot take the shelter of others. " He reminds her that her marriage had been solemnised with him. "To do service entirely depends upon you and me and not upon (your) father. It is time to resign the Service. " He repeats: "It is against the respect of my family, yourself and myself that I should allow you to serve at a monthly pay of Rs. 120/ and only for a tenure of six months and myself to stay at Simla in the Hotel." He then in stronger language demanded her to resign her job within 24 hours and come to his house direct without waiting for her resignation to be accepted. He closes the letter with an ominous threat veiled as a warning: "If you do not resign the job, our relations will become strained." In the next letter (exhibit PC), dated December 16, 1971, Rama Nand wrote to Sumitra that he did not understand why she did not "improve his (?) life ' and why she was acting at the beck and call of others. He urged her that it would be better to 'live for a more '. He added: "You obey me or not, you yourself will understand the significance of this when you give place to it in your mind". He sternly repeated the warning: "I once again request you to keep in mind your as also my honour, what you have to do, as the time has come. There is no example in the history of world that a girl after marriage 455 should act on the advice of her father, which may be harmful." He again urged her: "Do not think this letter as a mere piece of paper, but each and every line in it will decide our future career. you should resign your post. " He again administered a warning, coupled with a threat of resorting to violence in case she did not resign her job to live with the accused permanently: "The present is the condition of China 's wall as Lt. General Mr. Kaul was saying that on China Border there is no firing, no firing, no firing. But what was the result in the end, you know better. . If you honour me, your husband, then you should tender your resignation from the job forthwith". He further sternly warned her: "If you still do not come round, what would happen in future, will entirely be your responsibility and I may not be blamed for that". He ended the letter with a hostile note, repeating the threat: "I may write, what will happen in future. Entire responsibility of future solely depends upon you. It is the question of life and not of service. . This is time of your test. Reply this letter. " The sentence, 'It is the question of life and not of service ' read in the context, clearly conveys to the wife a threat that the choice open to her was between 'life ' and 'service ', that is to say, she would not be left alive if she did not give up the 'service '. This letter unmistakably reveals that Rama Nand had worked his feelings at his wife 's persistent refusal to give up service and live with him, into such a frenzied resolve that if his wife did not, as he desired, 'mend ' her ways, he would 'end ' her life. Even after this letter, there appears to have been no alleviation or change in this revengeful attitude of the husband towards his wife. This is discernible from Rama Nand 's last letter dated May 9, 1972 (exhibit PAB) addressed to Sumitra. In this letter also, he cannot conceal his feeling of being "sick of you". He writes, ". the difference in views can make life troubleful or as well can lead towards downfall as I already told you", that "to deceive any true person can only be a sin and nothing else". He appears to be giving her a last warning, a last chance to come round and come home when he writes that "time is short I will again request you that if you try to come home on Saturday, it will be good . I do not feel good. you definitely try to come, if you cannot come on Saturday then come on Sunday, otherwise. " These letters vividly reveal that despite the repeated persuasions, warnings and threats proceeding from Rama Nand accused, Sumitra intransigently and persistently refused to give up her service at Chanyana, and residence with her parents, and declined to come and live permanently in the matrimonial home at Jherwin, and as a result, how the husband 's feelings of tenderness towards his wife progressively 456 changing into regret, persecution complex, resentment, exasperation and smouldering hostility, ultimately hardened into a revengeful resolve in the mind of Rama Nand to end what he calls "a dog 's life" by putting an end to the life of his spouse. We agree with the High Court that these letters reveal that Rama Nand appellant had a strong motive to murder the deceased. The second circumstance was also well established. It had been admitted even by the appellant and his co accused. The courts below have found, and rightly so, that both the limbs of circumstance No. (3) had also been established by evidence produced by the prosecution. Som Krishan (P.W. 33), father of Sumitra, had testified that when he went to Jherwin on receiving a message from the accused about the disappearance of his daughter, he was shown the Salwar (exhibit P 14) and shoes (exhibit P 15/1 2) and told that these clothes were left behind on the bank of the Sutlej river when she disappeared. P.W. 33 further stated that this shabby Salwar (exhibit P 14) which had patches on it, did not belong to Sumitra and she never wore such a Salwar; nor did the pair of shoes (exhibit P 15) belong to her. P.W. 33 further testified: "Then Rama Nand, Shish Ram and Kesar Chand accused implored me that they may be saved from police remand. To this I said that I was not conversant with law but you may tell the truth". This testimony of P.W. 33 has been accepted by the courts below. We have no reason to take a different view. As rightly held by the courts below Sumitra was a sophisticated and educated girl. It was difficult to believe that she would do chilly plantation and wear such a patched and dirty Salwar as exhibit P 14. The very story given out by the accused persons and narrated by Shish Ram in the report (exhibit PAQ) made by him to the Police, and repeated by him and Rama Nand in their examination under Section 342, Cr. P.C., to effect that Sumitra had after undressing and leaving behind her shoes (exhibit P 15) and Salwar (exhibit P 14) on the bank of the Sutlej, committed suicide by jumping into the river was improbable, incredible and false. Thus, circumstance 3(a) and (b) had also been clearly and cogently established. This piece of evidence was relevant under Section 8, Evidence Act and was a definite pointer towards the guilt of the accused. Circumstance (4) appearing in the prosecution evidence, was admitted by the accused persons. Circumstance (5) also stood established. Though a feeble pointer towards the guilt of the accused, by itself it was not of a conclusive character. Circumstance (6) has been seriously controverted. The burden of the arguments of the learned counsel for the appellants is that the prosecution had miserably failed to establish that the legless decomposed 457 body found in the river was that of Smt. Sumitra, and in such a situation, the possibility of her being alive cannot be reasonably ruled out. Although the High Court has held that the body recovered was that of Sumitra deceased and that the bones sent to the medical experts were not parts of the decomposed body found, but appeared to have been fraudulently replaced with the bones of a child during transmission to the medical experts, we would assume that the identity of the body found in the river was not established beyond reasonable doubt. In other words, we would take it that the corpus delicti, i.e., the dead body of the victim was not found in this case. But even on that assumption, the question remains whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability, she had been murdered by Rama Nand appellant ? It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused "caused the death" of the person alleged to have been killed. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. "I would never convict", said Sir Mathew Hale, "a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead". This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Hale 's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular 458 account of an eye witness, or by circumstantial evidence, or by both. But where the fact of corpus delicti, i.e. 'homicidal death ' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. In the instant case, Circumstances (1) to (5), in their cumulative effect, are not only inconsistent with the innocence of Rama Nand appellant, but ineluctably and rationally compel the conclusion that Sumitra has died and it is Rama Nand appellant who has intentionally caused her death. Circumstance (3) involves an admission by Rama Nand and Shish Ram accused that Sumitra has met an unnatural death. The only difference between the prosecution version and the defence version is as to whether Sumitra committed suicide or had been killed by Rama Nand appellant. It has been found that the story of the suicide set up by the accused is false. The articles Salwar (exhibit P.14) and the shoes (exhibit P 15) do not belong to her. They were planted by the accused to lay a false trail and to mis direct the investigation. This circumstance taken in conjunction with the others, irresistibly and rationally leads to the conclusion that she has been murdered by Rama Nand appellant and her dead body has been disposed of by the appellants Shish Ram and Kali Datt. For the foregoing reasons, we dismiss this appeal and maintain the convictions and sentences of the appellants. S.R. Appeal dismissed.

Dismissing the appeal and maintaining the conviction and sentences of the appellants, the Court ^ HELD:(1) It is well settled that where the inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else. In the instant case, the following circumstances had been correctly found to have been established by the prosecution: (i) Rama Nand accused had a strong motive to murder his wife, Sumitra. (ii) Sumitra was last seen alive with Rama Nand, appellant in the family house at Jherwin on the night between 13th and 14th May, 1972. (iii) (a) Rama Nand and the other co accused falsely gave out that she had committed suicide by jumping into the river. They 'planted ' a Salwar and a pair of shoes on the bank of the Sutlaj and gave out that they belonged to the deceased, and Shish Ram lodged a false report with the police to the effect that she had committed suicide by jumping into the river. The Salwar and the shoes, which had been 'planted ' there to manufacture false clues by the accused, did not belong to Sumitra, and the accused falsely asserted that whose articles belong to the deceased. (b) The story given out by the accused persons that upto 11 a.m. on May 14, 1972, Sumitra was planting chillies along with Sheela and other members of the family of the accused, was false. (iv) The gold chain (exhibit P 1) and the watch (exhibit P 2) which Sumitra used to wear on her person all the 24 hours, and the clothes (exhibit P 5 to P 10) which she had on her person and the basket (exhibit P 11) and umbrella (exhibit P 12) which she was carrying when on the evening of May 13, 1972 she came to house of the accused at Jherwin, were recovered from the house of the accused. (v) Some days after the occurrence, one Paranda was found from the jungle near this village. There was a bunch of hair in the plated tail of this Paranda. The tail appeared to have been cut. These hair sticking in the paranda and those found entangled in the Dupatta of the deceased were according to the Forensic Expert of one and the same person. (vi) A legless decomposed corpse was recovered from the Sutlej near village Randol in a mutilated condition. But its identity [451G H, 452A E, 453A B] (2) Even on the assumption that the dead body of the victim was not found, circumstances (i) to (v) mentioned above in their cumulative effect includably and rationally compel the conclusion that Sumitra had died and it was Rama 445 Nand accused who had intentionally caused her death. Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence is sufficient proof of homicidal death of the victim. Even so, discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old doctrine of Sir Mathew Hale that "for a conviction of murder atleast the body was found dead" would open the door wide open for many a heinous murderer to escape with impunity simply because they were a cunning and clever enough to destroy the body of their victim. In the context of our law, Hale 's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. Such proof may be the direct ocular account of an eye witness, or by circumstantial evidence, or by both. But where the fact of corpus delicti, i.e. 'homicidal death ' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a prudent man ought. under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. [457 D H, 458A D]

12 of 1959. Petition under article 32 'of the Constitution of India for enforcement of fundamental rights. R.Gopalakrishnan, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the petitioners. C.K. Daphtary, Solicitor General of India, B. Ganapathy Iyer and T. M. Sen, for the respondents. March 14. The Judgment of the Court was delivered by VENKATARAMA AIYAR, J. The petitioner is a joint Hindu family firm carrying on business at Berhampur in the State of Orissa, and registered as a dealer under the provisions of the Orissa Sales Tax Act, 1947, hereinafter referred to as the Act. Its business consists in the purchase of castor seeds, turmeric, gingili and other commodities locally, and selling them to demlers outside the State. The Sales Tax Officer, Berhampur, included in the taxable turnover of the petitioner the purchase of goods made by it inside the State but sold, as aforesaid, to dealers outside the State and imposed a tax of Rs. 27,161 13 0 on account of such sales during the sixteen quarters commencing from April 1, 1952, and ending with March 31, 1956. In the present application filed under article 32, the petitioner challenges the validity of the tax on the ground that the purchases in question were made in the course of inter State trade, and that a tax thereon was in contravention of article 286(2) The impugned tax has be en levied under section 5 of the Act, which, omitting what is not relevant, runs as follows: 5. (1) The tax payable by a dealer under this 316 Act shall be levied at the rate of one quarter of an anna in the rupee on his taxable turnover: . . . . . . (2) In, this Act the expression "taxable turnover" means that part of a dealer 's gross turnover during any period which remains after deducting there from: (a) his turnover during that period on . . . . . . (ii) sales to a registered dealer of goods specified in the purchasing dealer 's certificate of registration as being intended for resale by him in Orissa or for use by him in the execution of any contract in Orissa, and on sales to a registered dealer of contai ners or other materials for the packing of such goods: Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration the price of goods so utilised shall be included in his taxable turnover. It will be seen that under this section when a sale takes place, the seller has to include it in his taxable turnover; but when the sale is to a registered dealer who declares that his purchases are for resale in Orissa, then it is excluded from the seller 's turn. If the registered dealer purchaser sells the goods outside the State in breach of the condition, the purchases by him are liable to be included in his turnover, and assessed to sales tax. That precisely is what has happened in this case. The sales to the petitioner were not included in the taxable turnover of the sellers by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in 'Orissa. But in violation of this declaration he sold the goods to dealers outside the State, and so he became liable to be taxed under section 5(2)(a)(ii) of the Act. The contention of the petitioner is that these purchases were made in the course of inter State trade, and that the imposition of sales tax thereon is, in 317 consequence, ultra vires The provision applicable is article 286(2), as it stood prior to the sixth amendment, and it ran as follows: "Except in so far as, Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce. " The argument on behalf of the petitioner is that as the goods were purchased for the purpose of being sold to dealers outside the State, and they were in fact so sold, the purchases were in the course of inter State trade, and the levy of tax thereon was within the prohibition enacted by article 286(2). We do not agree with this contention. The transactions of sales which have been taxed were wholly inside the State of Orissa. They were sales by persons in the State of Orissa to persons within the State of Orissa, of goods which were in Orissa. The fact that the purchaser sold those very goods to dealers outside the State is not relevant, as those sales are distinct and separate from the sales on which the taxes in question have been imposed. The present levy is not on the sales by the petitioner to persons outside the State, but on the purchases by him inside the State. The former sales are in the course of inter State trade, and are not taxable under article 286(2), but the latter are purely intrastate sales, and a tax imposed thereon does not offend article 286(2). In support of his, contention that the purchases are hit by Art 286(2), the petitioner relies on the, decision of this Court in Messrs. Mohanlal Hargovind Das V. The State of Madhya Pradesh (1). In that case, the petitioners who were registered dealers under the Central Provinces and Berar Sales Tax Act, 1947, were carrying on business in the manufacture and sale of bidis in Madhya Pradesh. For the purpose of their business, they imported processed tobaco from the State of Bombay in large quantities, rolled them into bidis and sold them to dealers in other States. (1) ; 318 The sales tax authorities imposed a tax on the purchases made by them, on the ground that they had, in breach of the declaration in the registration certificate, sold them to merchants outside Madhya Pradesh. The contention of the petitioners was that the purchases by them were in the course of inter State trade, and that the imposition of tax thereon was therefore repugnant to article 286(2). It was this contention that was accepted by this Court. It will be noticed that the in this case the assessment of sales tax was on very purchases from dealers in Bombay, under which the goods were transported from the State of Bombay to Madhya Pradesh. In the present case, the purchases which are sought to be assessed involved no movement of the goods outside the State of Orissa. In order that a sale or purchase might be inter State, it is essential that there must be transport of goods from one State to another under the contract of sale or purchase. In the Bengal Immunity Company Limited vs The State of Bihar (1) occur the following observations which are apposite: "A sale could be said to be in the course of interState trade only if two conditions concur: (1) A sale of goods and (2) a transport of those goods from one State to another under the contract of sale. Unless both those conditions are satisfied, there can be no sale in the course of interstate trade. " With reference to the analogous provision under article 286(1)(b) prohibiting the imposition of tax on the sale or purchase of goods in the course of import or export, it has been field by this Court that it is only a sale or purchase which occasions the export or import of the goods out of or into the territory of India or a sale in the State by the exporter or importer by transfer of shipping documonts, while the, goods are beyond the customs barrier, that is within the exemption, and that a sale which precedes such export or import or follows it is not exempted, vide State of Travancore. Cochin vs Shannugha Vilas Cashew Nut Factory (2). On the same principles, a purchase, made inside a State, for sale outside the State cannot itself be held (1) 784 785. (2) ; 319 to be in the course of inter State trade, and the imposition of a tax thereon is not repugnant to article 286(2) of the Constitution. In the result this petition is dismissed with costs. Petition dismissed.

The petitioner who was a, registered dealer under the Orissa Sales Tax Act, 1947, was carrying on the business of purchasing and reselling castor seeds, etc., in the State of Orissa. Under a declaration given by him for the purpose of obtaining his registration certificate the goods purchased by him in Orissa were to be resold in that State. He purchased certain commodities inside the State but in contravention of his declaration sold, the goods to dealers outside the State. The Sales Tax Officer included in the taxable turnover of the petitioner the purchase made by him inside the State in accordance with section 5(2)(a)(II) of the Act. The contention of the petitioner was that the purchase was in course of inter State trade and was exempted under article 286(2) of the Constitution of India. Held, that the transaction of sale which has been taxed was wholly inside the State of Orissa and was distinct and sepa rate from the sale made by the purchaser to dealers outside the State. The former transaction was taxable under section 5(2)(a)(II) of the Act while the latter was exempted under article 286(2) of the Constitution. Messrs. Mohanlal Hargovind Das vs The State of Madhya Pradesh, ; , distinguished. In order that a sale or purchase might be inter State, it is essential that there must be transport of goods from one State 315 to another under the contract of sale or purchase. A purchase made inside a State, for sale outside the State cannot itself be held to be in the course of inter State trade and the imposition of tax thereon is not repugnant to article 286(2) of the Constitution. Bengal Immunity Company Limited vs The State of Bihar, and State of Travancore Cochin vs Shanmugha Vilas Cashew Nut Factory; , , followed.

Civil Appeal No. 2383 of 1977. Appeal by special leave from the judgment and order dated 18th November, 1976 of the Bombay High Court in Civil Appln. No. 1741 of 1976. Gobind Ram Bhatia, R. C. Bhatia and P. C. Kapoor for the Appellant. Nemo for the Respondent. The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by special leave is directed against the judgment of the High Court of Bombay dated December 24, 1975. The short point of law involved in this case is whether the lease in question granted by the landlord to the appellant tenant was a lease for manufacturing purposes. In case the lease was for a purpose of manufacture then it is manifest that under section 106 of the Transfer of Property Act the lease could be terminated only by giving six months notice. The suit was contested by the defendant tenant. The plaintiff 's case was that the tenancy was from month to month and, therefore, a month 's notice to terminate the tenancy was sufficient and the provision under section 106 of the Transfer of Property Act was not attracted. The plaintiff also denied that the lease was for a manufacturing purpose. The High Court upheld the judgment of the District Judge holding that the lease was not for a manufacturing 1199 purpose and held that the tenancy was rightly terminated as the notice was valid. Mr. Gobind Ram Bhatia, learned counsel for the appellant tenant, has submitted a short point of law before us. He submits that having regard to the process of manufacturing carried on by the defendant, there can be no doubt that the lease was for a manufacturing purpose and could be terminated only by six months notice under Section 106 of the Transfer of Property Act. Notice was issued to the respondents. That notice was duly served on them. There is a certificate given by the High Court of Bombay itself that the notice on the respondents was served. Nobody has appeared for the respondents to contest this appeal. In the present case, the admitted facts are as under: 1. That to begin with the lease was given to the defendant in respect of an open piece of land; 2. That on the open piece of land the appellant installed a flour mill and that the defendant was not using the land for any other purpose except running a flour mill. That the receipts filed by the tenant clearly show that the lease was doubtless a yearly one. Reliance was placed by the District Judge on the counter foils where the plaintiff landlord tried to make out a case of monthly tenancy but the entry in the counter foil being an admission in his own favour was not admissible against the appellant. On the other hand, the trial court has pointed out at page of its judgment that the receipts produced by the tenant clearly show that the rent used to be paid from year to year. Exhibits 24 to 26 pertained to the rent paid on an yearly basis right from 1959 to May 31, 1961. On point of fact, therefore, we are satisfied that in the instant case the lease was from year to year and, therefore, a month 's notice was not legal if the lease was for a manufacturing purpose. The second point which arises for decision is as to the purpose of the lease. This point is no longer res integra and is concluded by a clear authority of this Court in Allenburry Engineers Private Ltd. vs Ramakrishna Dalmia and Ors. where this Court has laid 1200 down that the expression "manufacturing purposes" in Section 106 of the Transfer of Property Act must be used in its popular and dictionary meaning as the statute has not defined the word "manufacturing purposes". We might state that in the present set up of our socialistic pattern of society when our country has made strong strides in various spheres of industrial activities an industrial venture must be given the most liberal interpretation so as to subserve the object of the statute. Of course the burden of proof whether the purpose of the lease was a manufacturing purpose would be on the defendant but we are satisfied that the defendant in this case has amply discharged its onus. In the aforesaid case this Court observed as follows: "The word 'manufacture ', according to its dictionary meaning, is the making of articles or material (now on large scale) by physical labour or mechanical power. (Shorter Oxford English Dictionary, Vol. I 1203). According to the Permanent Edition of Words and Phrases Vol. 26, 'manufacture ' implies a change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use. " In coming to this conclusion this Court relied on two of its earlier decisions in South Bihar Sugar Mills vs Union of India and Union of India vs Delhi Cloth and General Mills. Even before the decision of this Court, B.K. Mukherjea, J. (as he then was) who was later elevated to the Bench of this Court and retired as Chief Justice of India observed in Joyanti Hosiery Mills vs Upendra Chandra Das as follows: "To manufacture, according to its Dictionary meaning means "to work up materials into forms suitable for use". The word "material" does not necessarily mean the original raw material for a finished article may have to go through several manufacturing processes before it is fit and made ready for the market. What is itself a manufactured commodity may 1201 constitute a "material" for working it up into a different product. "Thus, for example for the tanner, the material would be the raw hide, but the leather itself a manufactured article would constitute the material for the shoemaker 's business, and we cannot say that the shoe makers are not manufacturers because they do not work on raw hides. " In the case of John Augustine Peter Mirande and anr. vs N. Datha Naik the Mysore High Court following the Calcutta decision held that the lease in that case, which was a case of saw mill, was for manufacturing purposes. We might observe that so far as the present case, where the mill is a flour mill, stands higher than the facts of the case in Mysore case (supra). Coming now to the tests laid down by this Court the position may be summarised as follows: 1. That it must be proved that a certain commodity was produced; 2. That the process of production must involve either labour or machinery; 3. That the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put to a different use. In other words, the commodity should be so transformed so as to lose its original character. In the instant case what happened was that wheat was transformed, by the manufacturing process which involved both labour and machinery, into flour. The commodity before manufacture was wheat which could not be consumed by any human being but would be used only for cattles or medicine or other similar purposes. The end product would be flour which was fit for human consumption and is used by all persons and its complexion has been completely changed. The name of the commodity after the product came into existence is Atta and not Gehun (wheat). Thus in the instant case all the three tests have been fully satisfied. This being the position the irresistible inference and the inescapable conclusion would be that the present lease was one for manufacturing purposes. In this view of the matter, the notice of one month must be held to be invalid and suit for ejectment should have failed on that ground. 1202 We, therefore, allow this appeal, set aside the judgment of the High Court and dismiss the plaintiff 's suit. Before concluding we would like to add that with due respect, that the judgment of the High Court is not very satisfactory as it has not made any real attempt to apply its mind to the substantial question of law that was involved in the case and seems to have rushed to its conclusions even without considering the authorities on the subject particularly the one referred to in the judgment as also the authoritative decision of this Court referred to above which was pronounced five years before the judgment of the High Court was given. From such a prestigious High Court as Bombay we do expect a more careful and cautious approach in a matter like this. As the respondents have not appeared before us, we make no order as to costs in this Court. The appellant will certainly be entitled to costs in the Courts below. P.B.R. Appeal allowed.

A piece of open land belonging to the plaintiff (respondent) was given on lease to the defendant (appellant). The appellant installed a flour mill on that land. He did not use it for any purpose other than running the flour mill. In his suit for eviction of the tenant from the land, the plaintiff claimed that the tenancy was from month to month and that a month 's notice given by him to terminate the tenancy was sufficient. The trial court, on the basis of receipts produced by the plaintiff, held that rent was paid on an yearly basis. Upholding the view of the District Judge that the lease was not for a "manufacturing purpose", the High Court held that the tenancy was rightly terminated by giving a valid notice. On further appeal to this Court it was contended on behalf of the tenant that the lease was for a "manufacturing purpose", and that under section 106 of the Transfer of Property Act it could be terminated only by giving six months ' notice. Allowing the appeal, ^ HELD: The lease was from year to year and was for a "manufacturing purpose", and, therefore, a month 's notice was not legal. The suit for ejectment should have failed on this ground. [1201 H] When the country is making rapid strides in various spheres of industrial activity the term "manufacturing purpose" must be given the most liberal interpretation so as to subserve the object of the statute. So interpreted the tests for deciding whether a lease was for a "manufacturing purpose" are (i) that a certain commodity is produced; (ii) that the process of production would involve either labour or machinery and (iii) that the end product coming into existence after the manufacturing process is complete, should have a different name and should be put to a different use. [1200 B 1201 D E] 1198 In the instant case all the three tests have been satisfied because wheat was transformed into flour by the use of labour and machinery making it fit for human consumption and, therefore, the lease was for a manufacturing purpose". [1201 F] Allenburry Engineers Private Ltd. vs Ramakrishna Dalmia and Ors. ; followed. Joyanti Hosiery Mills vs Upendra Chandra Das, A.I.R. 1946 Calcutta 317 and John Augustine Peter Mirande and Anr. vs N. Datha Naik, A.I.R. approved.

N: Writ Petition Nos. 5370 74 of 1980 (Under article 32 of the Constitution) M. K. Ramamurthi, J. Ramamurthi and Miss R. Vaigai for the petitioners in WPs. 5370 74 R. K. Garg and V. J. Francis J. P. Cama & Mukul Mudgal for Intervener in WPs. 5370 74. K. Parasaran, Attorney General, M. K. Banerjee, Additional Solicitor General, Miss A. Subhashini and C. V. Subba Rao, for the respondent (Union of India) P. R. Mridul, O. C. Mathur, section Sukumaran, D. N. Mishra & Miss Meera Mathur for respondent No. 2 in WPs. 5370 74 & 5434. Hemant Sharma & Indu Sharma for the respondent in WPs. 5370 74. r. Vineet Kumar, Lalit Bhasin, Vinay Bhasin & Miss Arshi singh?, for Respondent Nos. 3 to 6 in WPs. 5434 & 5370 74. Ambrish Kumar for Intervener in WP. Chandidus Sinha Intervener in person in WPs. 5370 74. The Judgment of the Court was delivered by 259 SABYASACHI MUKHARJI J. These petitions under Article 32 of the Constitution are filed by the employees of the General Insurance Companies and the All India Insurance Employees Association. The respondents are, Union of India, the General Insurance Corporation of India and four General Insurance companies. The petitioners challenge the Notification dated 30th September, 1980 of the Ministry of Finance (Department of Economic Affairs) (Insurance) introducing what is called General Insurance (Rationalization and Revision of Pay Scales and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Second Amendment Scheme, 1980 as being illegal and violative of their fundamental rights under Articles 14, 19(1)(g) and 31 of the Constitution of India. Prior to 1972, there were 106 General Insurance companies Indian and foreign. Conditions of service of these employees were D, governed by the respective contracts of service between the companies and the employees. On 13th May, 1971, the Government of India assumed management of the general insurance companies under the General Insurance (Emergency Provisions) Act, 1972. The general insurance business was nationalised by the (Act 57 of 1972). The preamble of the Act explains the purpose of the Act as to provide for the acquisition and transfer of shares of Indian insurance companies and undertakings of other insurers in order to serve better the needs of economy in securing development of . general insurance business in the best interest of the community and to ensure that the operation of the economic system does not result in the concentration of wealth to the common detriment, for the regulation and control of such business and for matters connected therewith or incidental thereto. Act 57 of 1972, by Section 2, declared that it was for giving effect to the policy of the State towards securing the principles specified in clause (c) of Article 39 of the Constitution. Under Section 3(a) of the Act, 'acquiring company ' has been defined as any Indian insurance company and, where a scheme had been framed involving the merger of one or more insurance companies in another or amalgamation of two or more such companies, means the Indian insurance company in which any other company has 260 been merged or the company which has been framed as a result of . the amalgamation. Section 4 provides that on the appointed day all the shares in the capital of every Indian insurance company shall be transferred to and vested in the Central Government free of all trusts, liabilities and encumbrances affecting these. Section S provides for transfer of the undertakings of other existing insurers. Section 6 provides for the effect of transfer of undertakings. Section 8 provides for the Provident Fund, superannuation, welfare or any other fund existing. Section 9 stipulates that Central Government shall form a Government company in accordance with the provisions of the Companies Act, to be known as the General Insurance Corporation of India for the purpose of superintending, controlling and carrying on the business of general insurance. Section 10 stipulates that all shares in the capital of every Indian insurance company which shall stand transferred to and vested in the Central Government by virtue of Section 4 shall immediately after such vesting, stand transferred to and vested in to Corporation . Chapter IV deals with the amounts to be paid for acquisition and as such we are not concerned in this case with that chapter in view of the controversy involved. Chapter V of the aforesaid Act deals with "Scheme for reorganisation of general insurance business" Section 16 and 17 of the Act in this chapter are as follows: "16. (1) If the Central Government is of opinion that for the more efficient carrying on of general insurance business it is necessary so to do, it may, by notification, frame one or more schemes providing for all or any of the following matters: (a) the merger in one Indian insurance company of any other Indian insurance company, or the formation of a new company by the amalgamation of two or more . Indian insurance companies; (b) the transfer to and vesting in the acquiring company of the undertaking (including all its business, properties, 261 assets and liabilities) of any Indian insurance company which ceases to exist by reason of the scheme; (c) the constitution, name and registered office and the capital structure of the acquiring company and the issue and allotment of shares; (d) the constitution of a board of management by what ever name called for the management of the acquiring company; (e) the alteration of the memorandum and articles of association of the acquiring company for such purposes as may be necessary to give effect to the scheme, (f) the continuance in the acquiring company of the services of all officers and other employees of the Indian insurance company which has ceased to exist by reason of the scheme, on the same terms and conditions which they were getting or, as the case may be, by which they were governed immediately before the commencement of the scheme; (g) the rationalisation or revision of pay scales and other terms and conditions of service of officers and other employees wherever necessary; (h) the transfer to the acquiring company of the provident, superannuation, welfare and other funds relating to the officers and other employees of the Indian insurance company which has ceased to exist by reason of the scheme; (i) the continuance by or against the acquiring company of legal proceedings pending by or against any Indian insurance company which has ceased to exist by reason of the scheme, and the initiation of such legal proceedings, civil or criminal, as the Indian insurance company might have initiated if it had not ceased to exist; (j) such incidental, consequential and supplemental matters as are necessary to give full effect to the scheme. 262 (2) In framing schemes under sub section (1), the object of the Central Government shall be to ensure that ultimately there are only four companies (excluding the Corporation) in existence and that they are so situate as to render their combined services effective in all parts of India. (3) Where a scheme under sub section (1) provides for the transfer of any property or liabilities, than, by virtue of the scheme, the property shall stand transferred to and vested in, and those liabilities shall be transferred to and be come the liabilities of the acquiring company. (4) If the rationalization or revision of any pay scales or other terms and conditions of service under any scheme is not acceptable to any officer or other employee, the acquiring company may terminate his employment by giving him compensation equivalent to three months remuneration, unless the contract of service with such employee provides for a shorter notice of termination. Explanation. The compensation payable to an officer or other employee under this sub section shall be in addition to, and shall not affect, any pension, gratuity, provident fund of other benefit to which the employee may be entitled under his contract of service. (5) Notwithstanding anything contained in the or in any other law for the time being in force, the transfer of the services of any officer or other employee of an Indian insurance company to the acquiring company shall not entitle any such officer or other employee to any compensation under that Act or other law, and no such claim, shall be entertained. by any court, tribunal or other authority. (6) The Central Government may, by notification add to, amend or vary any scheme framed under this section. (7) The provisions of this section and of any scheme. framed under it shall have effect notwithstanding anything to the contrary contained in any other law or any agreement, award or other instrument for the time being in force. 263 17. A copy of every scheme and every amendment , thereto framed under section 16 shall be laid, as soon as may be after it is made, before each house of Parliament." The object of any scheme under this chapter, according to the petitioners, was clear from the main part of Section 16(1) of the said Act, i.e. a scheme made under this chapter was only for the purpose of providing for the merger of Indian insurance companies, and this was made clear by Section 16(2) of the Act. Section 16(4) of the said Act, it was contend on behalf of the petitioners, implied that any scheme of rationalization or revision of pay scales and other terms could only be in the context of merger and amalgamation of a one or more of the companies. In this connection mention was made in the petition of the "Memorandum regarding delegated legislation" submitted to the Parliament along with the General Insurance Business (Nationalisation) Bill, 1972 (Bill No. 60 of 1972), which later became the aforesaid Act. It was made explicit, according to the petitioners, that clause 16 of the Bill, later Section 16 of the Act "empowers the Central Government to frame one or more schemes for the . merger of one Indian insurance company with another or for the amalgamation of the two or more Indian insurance companies and for matter consequential to such merger or amalgamation, as the case might be. " It was in the aforesaid context of merger of companies that Section 16(1)(g) provided for rationalisation and revision of pay scales and other terms and conditions of service of officers and other employees wherever necessary. In exercise of the powers contained in the aforesaid Section ] 6(1) of the said Act, four merger schemes were framed in 1973 by the Central Government and the four companies, oriental Fire and General Insurance Company Ltd., National Insurance Company Ltd., New India Assurance Company Ltd., and United India Insurance Company Ltd., into one or the other of which several general insurance companies in the country were merged, were alone allowed to carry on the business of general insurance. The preamble of the scheme, called the New India Assurance Company Limited (Merger) Scheme, 1973, had stated that the Central Government was of the opinion that for the more efficient carrying on of the general insurance business, it was necessary to frame scheme for the merger of certain Indian Insurance companies in the New India Assurance Company Limited. The preambles of the merger schemes in respect of the other three companies were on similar 264 lines. These four companies are subsidiaries of the General Insurance Corporation of India. The companies started functioning from 1st January, 1973 and the process of merger of the various companies into one of the other four companies was completed by I st January, 1974, when the said four schemes came into force. The said schemes provided for the transfer of officers and employees of the merged companies to the transferee Company. The memorandum and the articles of association of the four Companies were also suitably altered by the said schemes. Thereafter there had been no merger or amalgamation of any insurance company. The petitioners stated that there had been no reorganisation of general insurance business either. This position is not in dispute. By a notification dated 27th May, 1974, the Ministry of Finance (Department of Revenue and Insurance Government of India, framed a 'scheme ' called the General Insurance (Nationalisation and Revision of Pay Scales and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, }974, and the preamble of the scheme stated that "whereas the Central Government is of the opinion that for the more efficient carrying on general insurance business, it is necessary to do", therefore, in exercise of the powers conferred by Section 16(1)(g) of the aforesaid Act, the Central Government framed the 'scheme ' to provide for the rationalisation and revision of pay scales and other terms and condition of service of employees working in supervisory, clerical and subordinate position under the insurers. The said scheme governed the pay scales, dearness allowance, other allowances and other terms. and conditions of the general insurance employees. It dealt, inter alia, with nature and hours of work, fixation, retirement, provident fund and gratuity. Paragraph 23 of the 1974. scheme provided that the 'New scales of pay ' shall remain in force initially upto and inclusive of 31st December, 1976 and thereafter. shall continue to be in force unless modified by the Central Government. The scheme was framed after negotiations with the parties concerned. The petitioners further state that the scheme was purported to have been made under Section 1611)(g) of the said Act and it was treated as one made under Section 16(1) as part of the four merger schemes. The petitioners state that otherwise, it would have been invalid. The petitioners further state that the employees of the insu 265 rance companies serving throughout the country were, however, subsequently not satisfied with the pay scales, dearness allowance, other terms and conditions available to them on account of several. factors. Through their associations, they submitted their charters of demands to the General Insurance Corporation of India in 1977 for the revision of terms and conditions of their service. Negotiations were held between the management and the unions for the upward revision but according to the petitioners, nothing happened. Industrial dispute was raised between the management of General Insurance Corporation of India and the class III and IV employees. On the demand of revision of pay scales, dearness allowance and other allowances and service conditions. The Chief Labour Commissioner (Central), Government of India, Ministry of Labour, issued conciliation notice dated 11th September, 1980 under the to the Chairman of the General Insurance Corporation and the general secretaries of the employees ' associations. There were several meetings. It was decided, according to the petitioners, that in the meanwhile until the talks were resumed the employees would not resort to strike. There was representation to the respondents not to change the conditions of service pending the conciliation proceedings. It is not necessary to refer in detail to all these, which have been set out in the petition. But nothing fruitful happened. The Labour Commissioner in the circumstances sent a failure report under the to the Secretary, Government of India, Ministry of Labour, stating that there was failure to bring about amicable settlement of disputes. The petitioners contend that no further action was taken and according to them the conciliation proceedings were still pending. This, however, is not accepted by the respondents, according to whom there was failure report and the conciliation proceedings ended thereafter. The scheme mentioned hereinbefore, which is under challenge was issued thereafter. We will have to deal with the scheme in great detail as the same is the subject matter of challenge is these petitions under Article 32 of the Constitution. After the 1974 scheme, in 1976, the Board of Directors approved of promotion policy. On 1st June, 1976 another scheme by which there were amendments with regard to Provident Fund, was introduced. As mentioned before in 1977, major unions submitted charters of demands to the respondent No. 2, seeking revision in the terms and conditions of service of the employees with retrospective 266 effect. Between 10th March, 1977 to 30th March, 1977, memorandum was addressed by the employees of all India Association to the Union Finance Minister. In the memorandum addressed, it was stated that in the normal circumstances on the expiry of the prescribed period of operation of an agreement, settlement of award, the unions usually submitted charters of demands and the said charters of demands were settled either through mutual negotiations or as a result of award of an industrial tribunal, built as the pay scales and other conditions of service of the employees in general insurance industry were, however, governed by a scheme or scheme to be formulated by the Central Government and it was the Central Government which could amend these, the unions submitted that there was justification for making upward revision the scheme and shifting the base years from 1960 to 1970 71 for the purpose of prescribing pay scales. This point was stressed by counsel appearing for the General Insurance Company, in order to emphasis that the unions always accepted the position prior to the present petitioner that the government had the power to amend or make further schemes under the provisions of the Nationalisation Act. On 30 July, 1977 scheme amending the provisions regarding sick leave was introduced. 1978 Promotion Policy was revised by General Insurance Company. Between 1979 80 there were discussions between the management of the Corporation and the representatives of the Trade Unions which were held on 8th, 9th, 10th October, 1979, 7th, 8th, 9th, April, 1980, 12th and 13th June and 1st August 1980. The management of the Corporation after several rounds of discussions with the Unions sought to narrow down the area of differences and submitted to the Government the demands made by the Unions and the managements recommendations. The General Insurance Corporation submitted before us that the Central Government after finally considering the demands and recommendations of the management of the Corporation framed and notified the scheme under challenge on 30th September, 1980. It was contended on behalf of the petitioners that the said notification had been issued by the Government suddenly and unilaterally, without any notice to the parties concerned. The employees were taken unawares. It was contended that from the provisions of the said notification the service conditions of the employees including the petitioners employees, particularly with regard 267 to dearness allowance, stagnation increments, retirement age and other increments had become worse than before and detrimental to the employees. While the employees were eagerly awaiting improvement in their service conditions, this notification had unilaterally altered the service conditions to their prejudice petitioners in their petitions had alleged certain facts by certain illustrations, which according to them, indicated that employees had been affected adversely, inter alia, in gross starting salary of different group of employees, salary on confirmation of assistants who are graduates etc. It was further stated that retirement age was 60 years for all the employees under the 1974 scheme. But under the new scheme, retirement age was reduced to 58 years for employees joining on or after I st January, 1979. Clause 7 of the impugned notification prescribed different ages of retirement, though the employees were of the same class and similarly situated according to the petitioners. Para 12(1) of the impugned scheme provided that an employee who was in service before the commencement of the said scheme would retire at the age of 60 years but provided that an employee joining the service on or after the commencement of the said scheme would retire from service on attaining the age of 58 years. This was discriminatory, according to the petitioners, being violative of Article 14 of the Constitution. lt was further alleged that stagnation increments that is increments after reaching the maximum of the grade to all cadres up to maximum of 3 for every two years of service were given before, but now under the present notification clause S substituted paragraph 7 and provided for no stagnation increment except only one increment for two years to the employees in record clerk cadre. Previously, there was no maximum limit on salary. Now maximum limit was fixed at Rs. 2750. Earlier, according to the petitioners, House Rent Allowance was given to all employees irrespective of Having official accommodation, under the new scheme, house rent ; allowance was withdrawn for employees having official accommodation. Earned leave earlier could have been accumulated upto 180 days, but the new scheme limited the accumulation of earned leave upto 180 days tor the employees retiring at the age of 58 years and 120 days for the employees retiring at the age of 60 years. It was stated in the petitions that this had substantially reduced the emoluments of the general insurance employees, and it had adversely affected the employees throughout the country. 268 The main ground of the challenge is that the impugned notification is illegal as the Central Government has no power to issue it under Section 16 of the said Act and such as the notification framing the present "scheme" is ultra vires Section 16(1) of the . According to the petitioners, once the merger of the insurance companies took place and the process of reorganisation was complete on 1st January, 1974 as mentioned before by forming the four insurance companies by the four schemes already framed in 1973, there could be no further schemes except in connection with further reorganisation of general insurance business and the merger of more. insurance companies as mentioned in sub section (1) of Section 16 of the said Act. By the present alleged scheme there was no merger or reorganisation contemplated, unlike 1974 scheme, according to the petitioners. The petitioners contend that merely making amendment to the terms and conditions of service of the employees unconnected with or not necessitated by the reorganisation of the. business or merger or amalgamation of the companies would not fall within Section 16(1)(g) of the Act. According to the petitioners, the only properly called schemes sanctioned under Section 16(1) are those four merger schemes of 1973 as would be evident from the preamble to the Act. The petitioners further contend that under the life Insurance Corporation Act, Banking Companies Act. there were power to frame regulations independently of reorganisation. But there is no such power, according to the petitioners, under the . The said notification therefore is without the authority of law. It is, further, submitted. that the present service conditions of the employees unrelated to reorganisation of general insurance business merger or amalgamation of insurance companies, could not form part of any scheme or notification under section 16 of the aforesaid Act. Section 16(7) of the Act would not come into play and the provisions or the Industrial disputes Act, 1947 including section 94 were applicable to the general insurance industry. Therefore if the companies wanted to change the service condition of their employees affecting them adversely, they should have given, the petitioners contend, notice of changes under section 9A of the , negotiated with the employees and arrived at some settlement or had the dispute adjudicated upon under the said Act. Since. this has not been done, particularly when the conciliation proceed 269 ings were still pending in the absence of Government 's acknowledgement of failure report of the conciliation officer, the action of the Government in issuing the unilateral notification is bad in law. It is submitted further that impugned notification is ultra vires being violative of Article 14 of the Constitution because it discriminated between employees similarly situated, particularly in the matter of dearness allowance and retirement age. The petitioners contend that under the Sick Textile Undertakings (Nationalisation) Act, 1974, the etc., separate companies had been formed on nationalisation. The employees of those companies were entitled to have their service conditions regulated under . In the present case, the employees have been deprived of the existing benefits without following the procedures prescribed under the . Therefore. there was discrimination and violation of article 14 of the Constitution. The petitioners therefore contend that the terms and conditions of service enunciated in 1974 being as a result of bilateral agreement, could not be changed unilaterally, to the detriment of the employees ' fundamental rights to carry on their employment for gain and as such violative of article 19(1) (g) of the Constitution. It is stated that the notification was illegal, being ultra vires section 16 of the Act. Since, according to the petitioners, such notification deprived the rights of the employees to receive dearness allowance etc. with the rise in the cost of living index without any limit, it is deprivation of property without providing for compensation and is thus also violative of article 31(2) of the Constitution. The petitioners, further, contend that the Constitution 44th amendment deleting 1 Articles 31 and 19(1) (f) cannot save the scheme since that Amendment came into force only on 20th June, 1979, whereas the impugned notification affecting the rights of the employees to emoluments takes effect from 1st January, 1979. It was further urged that the protection of article 31 read with Ninth Schedule of the Constitution was not available to any scheme or notification much less the present one, The present notification, according to the petitioners, disregarded the directive principles enunciated in Article 43 of the Constitution. The petitioners therefore ask for quashing the said notification by these petitions under Article 32 of the Constitution. The second batch of Writ applications (Writ Petition Nos. 5434 37 of 1980) are on behalf of the employees as well as the 270 General Insurance Employees All India Association challenge the scheme of 1980 more or less on the same though not identical grounds mentioned in Writ Petition Nos. 5370 74 of 1980. Interim order was passed in the said application regarding payment of dearness allowance as would appear from the Court 's order dated 25.8.1981. In the said order, directions were given for payment of dearness allowance payable under the old scheme from the beginning of 1981 with quarter April, as well as quarter beginning from July, 1981 within certain time mentioned in the said order. lt was further, directed that subsequent dearness allowances will be paid in accordance with the directions to be given at the time of disposal of these writ applications. In the Writ Petitions Nos. 5370 74 of 1980, there is a petition on behalf of All India National General Insurance Employees Association for intervention. It represents a Trade Union of workmen working in the offices of General Insurance Corporation of India, Bombay as well as its subsidiaries. They, inter alia, allege that the main petitions have challenged the scheme of 1980 on purely technical grounds and though it would be correct to say that the scheme of 1980 does not meet the aspirations of the workers wholly as reflected in the various charters of demands submitted to the management, they are of the opinion that the same is not completely bereft of any merit so that the same may be quashed by this Court. They mentioned certain additional benefits available in the said scheme of 1980 in paragraphs 15, 16, 17, 18 and 19 of the said application. They therefore claim right to intervene in the said Writ application Nos. 5370 74 of 1980. There is also an application by Senior Assistants of the New India Assurance Company Ltd. and National Confederation of General Insurance Employees, represented by its Vice president under order XLVII Rule 6 of the Supreme Court Rules of 1966 praying, for permission to intervene in these petitions. Upon this an interim order was passed on 24.10.1580 staying the operation of the scheme (operation of the Notification dated 30th September, 1980) and notice was issued in the stay application. All these will be disposed of by this judgment. It will, therefore, be necessary, before we examine the contentions raised in these petitions, to briefly consider the scheme of 1980. As mentioned before, this scheme is called the General Insurance 271 (Rationalisation and Revision of Pay Scales and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Second Amendment Scheme, 1980. Some new definitions have been provided by paragraph 2 of 1980 scheme which included the meaning of the 'Company ' and under the scheme it mentioned that the 'Company ' would mean the four nationalised companies, National Insurance Company Limited, the New India Assurance Company Limited, the oriental Fire and General Insurance Company Limited and the United India Insurance Company Limited. Sub paragraph (ii) of paragraph 2 of the said scheme defines 'Net monthly emoluments '. By sub paragraph (ii), the amended definition of 'Revised terms ', (Revised Scales of Pay) was inserted. By paragraph 3, adjustment of pay was stipulated on the coming into effect of operation of 1980 scheme. How the basic pay is to be fixed is provided by 1980 scheme. lt also makes detailed provisions as to how the adjustment allowance is to be dealt with so far as Dearness Allowance, overtime allowance, Contribution to Provident Fund and other retirement benefits are concerned. Paragraph 5 deals with the 'Increments. Paragraph 6 deals with Earned Leave and other Encasement of leave at the time of retirement and death. Paragraph 7 deals with 'Retirement ' and ' stipulates that an employee who was in service of the Corporation before the commencement of the scheme of 1980 should retire from service when he attains the age of 60 years. But an employee, who joins the service of the Corporation after the commencements of the scheme will retire on his attaining the age of 58 years. It further stipulates that an employee would retire on the afternoon of the last day of the month in which he attains the age of 60 years or 58 years as the case might be. Clause 8 deals with 'Gratuity '. Clause 10 provides the duration of revised terms and stipulates that the revised terms should be continued to be in force unless modified by the Central Government. Then the Second Schedule of 1974 scheme which dealt with Travelling Allowance category, Travel by Road and different allowances for the same, transfer grant were amended and the new Fourth Schedule included scales of pay to be fixed, on the revised scales of pay indicated therein. It is not necessary to set out further details of the actual provisions of 1980 scheme. While on behalf of the petitioners, it was contended that the revised scales of pay and the terms included therein were highly detrimental to the employees concerned, on the other hand, it was contended on behalf of the Union of India as well 272 as the General Insurance Company that on the whole, the revised scales of pay provided for better pay and allowances and better opportunities to the employees concerned. One of. the intervener unions also states that the 1980 scheme is not completely devoid of Merit. Parties have taken us through in detail by help of charts and other figures in support of the respective cases and contentions. It is not necessary, in view of the nature of the contentions raised before us, to express any opinion on the merits or demerits of the rival contentions of the parties in respect of the details of either or both the schemes. It may, however, be stated that there has been a ceiling on increase of pay automatically with the increase of the rise in the cost of index. The respondents, namely, the union of India as well as the General Insurance Company, contended that in comparison with other employees is governmental sectors or public sectors, the employees of the general insurance companies were 'High wage islanders ' and it was necessary to put a ceiling on the emoluments and other amenities in order to facilitate better functioning of the insurance companies concerned as well as subserve the object and purpose of the nationalisation policy. The various detailed items of the scheme of 1974 and 1980 have to be viewed in this background. The basic and, in our opinion, the main questions are has the Government and the respondents power in law to introduce the 1980 scheme and if they have that power, have they exercised that power in any arbitrary and whimsical manner to deny to the petitioners any of the fundamental rights and whether the petitioners have been discriminated against? These, therefore, are the questions and it is not necessary, in our opinion, to detain ourselves with lengthy extracts from the scheme of 1974 and 1980 to examine which is better or which is detrimental and if so, to what extent. On these, there will be and are divergent views. The scheme of 1980 has been framed by the Central Government under the authority given to it by the Act under . The scope of that authority has, therefore, to be found under Chapter V containing Sections 16 & 17 of the Act. We have set out hereinbefore the terms of Sections 16 & 17. Sub section (1) of Section 16 authorises the Central Government, if it is of the opinion that "for the more efficient carrying on of general insurance business, it is necessary to do so, may, by notification, frame one or more schemes" providin for 273 all or any of the matters enumerated in the different clauses of Section 16(1) of the said Act, and the matters have been set out in the different clauses of the said sub section. For the present purpose, clause (g) is relevant, which gives authority to the Central Government to frame scheme for rationalisation or revision of pay scales and other terms and conditions of service of officers and other employees wherever necessary. Clause (j) of the said sub section gives authority to the Central Government also to frame scheme for such incidental, consequential and supplemental matters as are necessary to give full effect to the scheme. Therefore, the question that is necessary for this purpose to determine, is, whether the power given to the Central Government by clause (g) for the rationalisation or revision of pay scales and other terms and conditions of service a of officers and other employees, wherever necessary can be said to authorise the Central Government to frame the present scheme under consideration. This must be judged in conjunction with sub section (6) of Section 16 which authorises the Central Government, by notification, to add, to amend or to vary any scheme framed under section 16. The point at issue, is, whether rationalisation or revision of pay scales and other terms and conditions of service of officers and other employees wherever necessary can authorise the Central Government to frame scheme like the scheme of 1980, which is unconnected with or unrelated to the merger of one Indian insurance company with another insurance company or the formation of a new company by the amalgamation of two or more Indian insurance companies. In order to find that out, it is necessary to read the provisions of this Act as a whole. Primarily, if the words are intelligible and can be given full meaning, we should. not cut down their amplitude. Secondly, the purpose or object of the conferment of the power must be borne in mind. The first indication of the said object in this case, as is often in similar statutes, can be gathered from the preamble to the Act. We have noticed the preamble of the present Act. This preamble has also to be read in the light of sub section (2) of Section 16 which provides that the object of the Central Government in framing the schemes under sub section (1) was to give authority to the Central Government to frame schemes, to ensure that ultimately there are only four insurance companies (excluding the Corporation) in existence and that they are so situate as to render their combined services effective in all parts of India. Sub section (2), therefore, to a large extent circumscribes the amplitude of the power given under sub section (1) of Section 16 of the Act As framing of the scheme is an exercise of the delegated 274 authority by the Central Government, the memorandum regarding delegated legislation submitted to the Parliament along with the General insurance Business (Nationalisation) Bill, 1972 will provide. some guidance also. As we have noticed that clause 16 of the said Bill which later on became Section 16 of the Act explained the need for delegated authority and stated the object as 'to frame one or more scheme for the merger of one Indian insurance company with another or for the amalgamation of the two or more insurance companies and for matters consequential to such merger or amalgamation as the case might be '. Bearing in mind that this is a delegated legislation and keeping in mind that the authority to frame the scheme must be found within the object of the power given under Chapter V of the Act and reading the entire connected provisions together, it appears to us, that the only authority or power to frame scheme given was for the purpose of merger of one Indian insurance company with another for amalgamation of two or more Indian insurance companies and for matters consequential to such merger or amalgamation as the case might be. Any scheme though, it might come within the wide expressions used in sub section (6) or Section 16 as well as clause (g) or clause (j) of sub section (1) of Section 16 which is unrelated to or unconnected with the amalgamation of the insurance companies or merger consequent upon nationalisation would be beyond the authority of the Central Government. This has to be so if read in conjunction with sub section (2) of Section 16 of the Act. It is evident from the scheme of 1980 that it is not connected with or is not for the purpose to ensure that ultimately there are only four insurance companies existing and they are so situate as to render combined services effective in all parts of India. It is true that subsequent to the merger of the four insurance companies, scheme as indicated herein before, dealing with Provident Fund, Gratuity etc. have been framed but these, in our opinion, are irrelevant when judging the question of the authority to frame a particular scheme which is impugned. It is also true that the scheme of 1974 so far as pay scale was concerned as indicated in the scheme as we have set out herein before provided that the scheme would remain in force initially for a period upto 31st December, 1976 and thereafter shall continue to be in force unless modified by the Central Government. It is also true that the employees themselves, as indicated herein before, wanted revision of pay scales and claimed through their numerous charters of demands amending or framing of a fresh scheme by the Government on the basis that the Central Government alone had the authority to frame the scheme under the Act. Certain amount of revision of pay scale and other terms and 275 conditions become inevitable from time to time in all running business or administrations. Clause (g) of sub section (1) of Section 16 authorises the Central Government to frame scheme for rationalisation and revision of pay scales and other terms and conditions of services of officers and other employees wherever necessary. But it is evident that the scheme of 1980 impugned in these petitions is not related to the object envisaged in sub section (2) of Section 16 of the Act. In order to be warranted by the object of delegated Legislation as explained in the memorandum to the Bill which incorporated Section 16 of the Act, read with the preamble of the Act, unless it can be said that the scheme is related to sub section (2) of Section 16 of the Act, it would be an exercise of power beyond delegation. The duty of the Court in interpreting or construing a provision is to read the section, and understand its meaning in the context. Interpretation of a provision or statute is not a mere exercise in semantics but an attempt to find out the meaning of the legislation from the words used, understand the context and the purpose of the expressions used and then to construe the expressions sensibly. There is another aspect which has to be kept in mind. The scheme is an exercise of delegated authority. The scope and ambit of such delegated authority must be so construed, if possible, as not to make it bad because of the vice of excessive delegation of legislative power. In order to make the power valid, we should so construe the power, if possible, given under Section 16 of the Act in such manner that is does not suffer from the vice of delegation of excessive legislative authority. It is well settled that unlimited right of delegation is not inherent in the legislative power itself. This Court has reiterated the aforesaid principle in Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. vs The Asstt. Commissioner of Sales Tax & Ors. The growth of Legislative power of the executive is a significant development of the 20th century. The theory is iaissez faire has been given a go by and large and comprehensive powers are being assumed by the State with a view of improve social and economic well being of the people. Most of the modern socioeconomic legislations passed by the legislature lay down the guiding principles of the Legislative policy. The legislatures, because of limitation imposed upon them 276 and the time factor, hardly can go into the matters in detail. The practice of empowering the executive to make subordinate legislation within he prescribed sphere has evolved out of practical necessity and pragmatic needs of the modern welfare State. Regarding delegated legislation, the principle which has been well established is that legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted. The legitimacy of delegated legislation depends upon its being used as ancillary which the legislature considers to be necessary for the purpose of exercising its legislature power effectively and completely. The legislature must retain in its own hand the essential legislative function which consists in declaring the legislative policy and lay down the standard which is to be enacted into a rule of law, and what can be delegated is the task of subordinate legislation which by very nature is ancillary to the statute which delegates the power to make it effective provided the legislative policy is enunciated with sufficient clearness a standard laid down. The courts cannot and do not interfere on the discretion that undoubtedly rests with the legislature itself in determining the extent of the delegated power in a particular case. lt is true that in this case under Section 16(1)(g), rationalisation or revision of pay scales and other terms and conditions of service of officers and other employees wherever necessary is one of the purpose for which scheme can be, framed under Section 16(1) of the Act. It is also true that incidental, consequential and supplementary matters as are necessary to give full effect to the scheme are also authorised under clause (j) of sub section (1) of Section 16. It has also to be borne in mind that scheme and every amendment to a scheme framed under section 16 shall be laid as soon as may be after it is made before each House of Parliament. The last provision is indicative of the power of superintendence that the legislature maintains over the subordinate legislation of scheme framed by the delegate under the authority given under the Act. From that point of view, it is possible to consider as indeed it was argued on behalf of the respondents in this case, that having regard to the fact that one of the objects of the Preamble is regulation and control of general insurance business and other matters connected therewith or incidental thereto and having regard to the fact that rationalisation and revision of pay scales whenever necessary was one of the objects envisaged under sub section (1) alongwith clause (j) of sub section (1) of Section 16 of Section 16 read with the safeguards of section 277 17 as we have set out herein before in case of revision and rationalisation of pay scales whenever it becomes necessary as in this case, according to the respondents, it had become necessary, the scheme of 1980 was permissible within the delegated authority. But we must bear in mind the observations of Mukherjea, J. in The Delhi Laws case to the following effect: "The essential legislative function consists in the determination or choosing of the legislative policy and of enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out of the details within the framework of that policy". But as explained before the Act must be read as a whole. The Act must be read in conjunction with the preamble to the Act and in conjunction with the memorandum in Clause No. 16 of the Bill which introduced the Act in question. But above all it must be read in conjunction with sub section (2) of Section 16 of the Act which clearly indicated the object of framing the scheme under Section 16(1) of the Act. The authority and scope for subordinate legislation can be read in either of the two ways; namely one which creates wider delegation and one which restricts that delegation. In our opinion, in vies of the language of sub section (2) of Section 16 and the memorandum to the Bill in the peculiar facts of this case the one which restricts the delegation must be preferred to the other. So read, in our opinion, the authority under Section 16 under the different clause of sub section (1) must be to subserve the object as envisaged in sub section (2) of Section 16 of the Act, and if it is so read than framing of a scheme for purposes mentioned in different clause of sub section (1) of Section 16 must be related to the amalgamation or merger of the insurance companies as envisaged both in the memorandum on delegated legislation as well as sub section (2) of Section 16. We may mention in this connection that in the case of A.V. Nachane & Another vs Union of India & Another, this contention of delegated legislation was adverted to. In that case the Court was concerned with Life 278 Insurance Corporation (Amendment) Act, 1981 where the policy of the Act as stated in the preamble of the Amendment Act was that "for securing the interests of the Life Insurance Corporation of India and its policy holders and to control the cost of administration, it is necessary that revision of the terms and condition of service applicable to the employees and agents of the Corporation should be undertaken expendiously. That was the object of the Act in question. Unfortunately that is not the object indicated as the object of the power to frame scheme under Section 16 of the present Act. In view of that object mentioned in the said decision and for other reasons in the case of A.V. Nachane & Another vs Union of India & Another (supra), this Court held that the Act in question did not suffer from the vice of excessive delegation. In view of what we have stated herein before, the scheme of 1980 so far as it is not related to the amalgamation or merger of insurance companies, it is not warranted by sub section (1) of Section 16. If that be so, the scheme must be held to be bad and beyond authority. This being the position, it is not necessary to examine the various other contentions raised in this case. Various contentions have been made. Both sides relied on various decisions in support of their respective contentions. Both sides relied on the decisions dealing with the employees of the Life Insurance Corporation and the Acts and the amendments in connection with their terms of employment. We will just note the decisions. Reliance was placed on the decision in the case of Madan Mohan Pathak vs Union of India & Ors, Etc. The question in that decision was that the validity of Section 3 of the Life Insurance Corporation (Modification of Settlement) Act, 1976. The questions involved in that decision, in the view. we have taken as well as in the facts of the instant case, are not relevant. In last mentioned case there was a writ petition which was allowed by the learned single Judge of the High Court and appeal was preferred from that decision. During the pendency of the appeal, there was an amendment to the Act namely, the Life Insurance Corporation (Modification of Settlement) Act, 1976. In the Letters Patent Appeal, the Corporation stated that in view of the impugned Act, there was no necessity for proceeding with the appeal and the Division Bench of Calcutta High Court made no order on the said appeal. This 279 Court held among other things that the rights of the parties had crystalized in the judgment and became the basis of a Mandamus of the High Court and it could not be taken away by indirect fashion proposed by the Act under challenge before this Court. Chandrachud, J., as the learned Chief Justice then was, speaking for himself and Fazal Ali and Shinghal, JJ. concurred with the majority view on the basis that the impugned Act violated Article 31(2) of the Constitution and was therefore void. Bhagwati, J. speaking for himself and on behalf ' of Iyer & Desai, JJ. was of the view that irrespective of whether the impugned Act was constitutionally valid or not, the Corporation was bound to obey the writ of Mandamus issued by the High Court and to pay the bonus for the year 1975 76 to class III and Class IV employees. The said learned judges held that writ of Mandamus was not touched by the impugned Act. The other observations of the said Judges as well as the other learned Judges are not relevant in the view we have taken. In instant case before us we do not have any case of settlement which was the subject matter there between the workers and the employers and the rights flowing therefrom. Reliance was also placed on the decision in the case of The Life Insurance Corporation of India vs D.J. Bahadur & Ors as well as the decision in the case of A.V. Nachane Another vs Union of India & Another (supra). In the view we have taken, it is not necessary to examine these decisions in detail. In those cases, the question under consideration was the and the subsequent amendments thereto as well as certain orders in respect of the same. The basis upon which the aforesaid two decisions proceeded were (a) a right had crystalized by the directions in D.J. Bahadur 's case (supra) and this could not be altered or taken away except by a fresh industrial settlement or award or by relevant legislation and (b) the relevant legislation which was the subject matter of challenge in A. V. Nachane 's case (supra) can not take away the rights which had accrued to the employees with retrospective effect. As is evident from the facts of the case before us, the situation is entirely different. We are concerned here with the question primarily whether the scheme is authorised by the Act and if it is so authporis 280 ed, the question is whether the Act in question is constitutionally valid in the sense it had taken away any rights which had crystalized or whether it infringed Article 14 of the Constitution. These decisions also deal with the question whether a special legislation would supersede a general legislation and which legislation could be considered to be a special legislation. It may be noted that we are not concerned with any settlement or award. In that view of the matter, it is not necessary to detain ourselves with the said decisions. and the various aspect dealt with in the said decisions. Another aspect that was canvassed before us was whether Section 16 of the 1972 Act with which we are concerned in any way affected any industrial dispute and whether the provisions of sub section (5) of Section 16 or sub section (7) of Section 16 in any way curtailed any right. in respect of any industrial dispute and if so whether the is a special legislation or whether the is a special legislation in respect of adjudication of rights between the employees and the employer. If we had held that the scheme of 1980 was permissible within the power delegated under Section 16 of the , it would have been necessary for us to discuss whether there is any conflict between the provisions of the said Act and the and if so, which would prevail. Section 16(5) of the 1972 Act, as we have noticed earlier, stipulates that notwithstanding anything contained in the or in any other law for the time being in force, the transfer af the services of any officer other employee of an Indian insurance company to the acquiring company shall not entitle any such officer or other employee to any compensation under that Act or other law, and no such claim shall be entertained by any court, tribunal or other authority. This, to a certain extent, clearly excludes the operation of the in respect of disputes arising on the transfer of the business of general insurance. There is no such question before us. Had it been possible to hold that the scheme of 1980 was valid in proper exercise of the authority under Section 16 of the Act, a question would have arisen as to whether the ceiling and other conditions on emoluments could be imposed on the employees in the manner proposed to be done under the scheme of 1980 without reference to the procedure for adjudication of these matters under the 281 . Then the question had to be judged h by reference to sub section (5) and sub section (7) of Section 16 of the 1972 Act. Section 16 empowered the Government by notification to add to, amend or very any scheme framed under Section 16(1) Sub section (7) provides that the provisions of this section, namely Section 16 of the 1972 Act and of any scheme under it shall have effect notwithstanding anything to the contrary contained in any other law or any agreement, award or other instrument for the time being in force. We have noticed the scheme of 1980. That scheme puts certain new conditions about retirement, about emoluments and other benefits of the employees. It may be noted that the application of as such in general is not abrogated by the provisions of 1972 Act, nor made wholly inapplicable in respect of matters not covered by any provisions of the scheme. This aspect is important and must be borne mind. Wrongful dismissal, other disciplinary proceedings, unfair labour practices, victimization etc. would still remain unaffected by any scheme or any provision of the Act. The only relevant and material question that would have arisen, is, whether in case where a statutory ceiling which one of the counsel for the petitioners tried to describe as "statutory gherao" on rise of increase in emoluments and other benefits with the rise in the cost of index of prices" affected the position under the . It may be noted as we have noted before that this is not a case where any dispute was pending before any tribunal or before any authority under the between the workmen concerned and he insurance companies. Though there was conciliation proceedings, the Conciliation proceedings could ' not reach to any successful solution and the conciliation officer has made a report failure of conciliation. The Government had the report. Thereafter the Government has not referred the dispute to any industrial tribunal hut has framed a scheme which is the subject matter of challenge before us. It cannot, in our opinion, be said that conciliation proceedings or any proceeding under the were pending and therefore in the middle of the proceedings under the , the Government had acted and framed the scheme and as such the same was bad and illegal. There were no proceedings pending under the . With the finding of the Conciliation officer, the Government 282 had two options, either reaching a settlement or framing a scheme on the one hand or to make a reference to the tribunal of the dispute regarding the points mentioned in the demands of the workmen. There is one factual dispute which, in our opinion, is not very material. According to the petitioners, the Government had not acknowledged the receipt of the failure report of the Conciliation officer. According to the respondents, the receipt was acknowledged; the failure of the conciliation proceedings, however, is admitted. No further steps or proceedings were required as such. The Government had to assess on the failure of tile conciliation proceedings either to refer the matter to the tribunal or to take such steps as it considered necessary. If the Government had not taken any of the steps, then it was open, if the employees concerned were in any way aggrieved, to take appropriate proceedings against the Government for doing so. As mentioned hereinbefore if the scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle . "Gener alia specialibus non derogant". The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied. (i) The two are inconsistent with each other. (ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is fulfilled, the later law, even though general, would prevail. From the text and the decisions, four tests are deducible and these are: (i) The legislature has the undoubted right to alter a law already promulgated through subsequent legislation, (ii) A special law may be altergated or repealed by a later general law by an express provision, (iii) A later general law will override a prior special law if the two are so repugnant to each other that they cannot co exist even though no express provision in that behalf is found in the general law, and (iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will remain wholly unaffected by a later general law. See in this connection. , 283 Maxwell on "The Interpretation of Statutes" Twelfth Edition, pages 196 198. The question was posed in the case of The Life Insurance Corporation of India vs D.J. Bahadur & Ors. (supra) where at page 1125, Krishna Iyer, J. has dealt with the aspect of the question. There the learned Judge posed the question whether the LTC Act was a special legislation or a general legislation. Reference in this connection may also be made on Craies on "Statute Law" Seventh Edition (1971) paras 377 382, but it has to be brone in mind that primary intention has to be given effect to. Normally two aspects of the question would have demanded answers, if the scheme of 1980 was held to be valid on the first ground as we have discussed, one is whether the is a special statute and the is a general Act or vice versa, and secondly whether there is any express provision in the which deals with the subject. Now in this case we have categorical reference to the in sub section (5) and sub section (7) of Section 16 of the . There is, however, one aspect w here it would have been necessary had we held the scheme to be valid otherwise, if there had been no General insurance Business (Nationalisation) Act, 1972, then the employees would have been entitled to raise a dispute on the question of increase of emoluments and revision of pay scale with rise in the cost of index of the prices under the . In such a situation, the Government, after conciliation proceedings, was empowered to make a reference if it considered so necessary having regard to the nature of the disputes raised. Though it cannot be said that reference was a matter of right but it was within the realm of power of the Government and the Government has a duty to act with discretion on relevant considerations to make or not to make a reference taking into consideration the facts and circumstances of each case. To that limited extent it could have been said That this right or power has been curtailed by the , if the scheme was otherwise valid Having regard to the context in which the question now arises before us, in our opinion, there is no question as to whether the provisions of would prevail over the provi 284 sions of . There is no industrial dispute pending as such. The has not abrogated the Industrial Disputes Act, 1957 as such. The question of the application of the principle of "Generalia specialibus non derogant" has been dealt with in the case of J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs State of U.P. & Ors. Some of these aspects were also discussed in the case of U.P. State Electricity Board & Ors. vs Hari Shanker Jain and Ors. Had it been possible to uphold the scheme of 1980 as being within the power of 1972 Act, it would have been also necessary for us to consider whether such a scheme or Act would have been constitutionally valid in the context of fundamental rights under Article 14, article 19(1)(g) and article 31 of the Constitution and the effect of the repeal of article 31 by the 44th amendment of the Constitution. The was put in the Nineth Schedule of the Constitution as item 95 on 10th August, 1975. The effect of putting a particular provision in the Nineth Schedule at a particular time has been considered by this Court in the case of Prag Ice & Oil Mills & Anr. vs Union of India. It was held by the learned Chief Justice in the said decision that on a plain reading of article 31A, it could not be said that the protective umbrella of the Nineth Schedule took in not only the. acts and regulations specified therein but also orders and notifications issued under those acts and regulations. Therefore if any rights of the petitioners had been affected by the scheme of 1980 then those rights would not enjoy immunity from being scrutinised simply because the Act under which the scheme was framed has been put in the Ninth Schedule. In any event any right which accrued to the persons concerned prior to the placement of the Act in the Nineth Schedule cannot be retrospectively affected by the impugned provisions. It was contended that the rights of the petitions under article 19(1)(g) have been affected by the impugned legislation and the scheme framed thereunder. Empowering the Government to frame schemes for carrying out the purpose of the Act, does not, in our 285 opinion, in the facts and circumstances of the case, in any way, affect or abridge the fundamental rights of the petitioners and would not attract article 19(1)(g). The other aspect which was canvassed before us was whether the Act and the scheme in question violated article 14 of the Constitution. This question has to be understood from two aspects, namely whether making a provision for salary and emoluments of the petitioners who are the employees of the General Insurance Corporation specifically and differently from the employees of other public section undertakings is discriminatory in any manner or not and the other question, is, whether making a provision for the employees of General Insurance Corporation for settlement of their dues by schemes and not leaving the question open to the general provisions of is discriminatory and violative of the rights of the employees. It is true that sometimes there have been rise in emoluments with the rise in the cost of index in certain public sector corporations. The legislature however is free to recognise the degree of harm or evil and to make provisions for the same. In making dissimilar provisions for one group of public sector undertakings does not per se make a law discriminatory as such. It is well settled that courts will not sit as super legislature and strike down a particular classification on the ground that any under inclusion namely that some others have been left untouched so long as there is no violation of constitutional restraints. It was contended that the application of the not having been excluded from the Nationalised Textile Mills, Nationalised Coal and Coking Coal Mines and Nationalised Banks but if and is so far as it excluded the application of the , in case of general insurance companies, the same is arbitrary and bad. In this connection reliance may be placed on the observations of the learned Chief Justice in the case of 'Special Courts Bill 1978 '. The same principle was reiterated by this Court in the case of State of Gujarat and Anr. vs Shri Ambica Mills Limited, Ahmedabad etc. In that case, this Court was of the view that in the matter of economic legislation or reform, a provision would not be struck down on the vice of underinclusion, inter alia, for the reasons that the legislature could not be 286 required to impose upon administrative agencies task which could not be carried out or which must be carried out on a large scale at a single stroke. It was further reiterated that piecemeal approach to a general problem permitted by under inclusive classifications, is sometimes justified when it is considered that legislatures deal with such problems usually on an experimental basis. It is impossible to tell how successful a particular approach might be, what dislocation might occur, and what situation might develop and what new evil might be generated in the attempt. Administrative expedients must be forged and tested. Legislators recognizing these factors might wish to proceed cautiously, and courts must allow them to do so. This principle was again reiterated in the Constitution Bench decision of this Court in the case of R. K. Garg etc. vs Union of India & Ors. etc As there was no industrial dispute pending, we are of the opinion that on the ground that the petitioners have been chosen out of a vast body of workmen to be discriminated against aud excluding them from the operation of , there has been no violation of Article 14 of the Constitution. This question, however, it must be emphasised again, does not really arise in the view we have taken. Before us it was contended that sick mills which have been nationalised have been treated differently than general insurance employees under 1972 Act in Section 16(5) and Section 16(7) and in the scheme framed under the . The object and purpose of the Sick Textile Undertakings (Nationalisation) Act, 1974, was "reorganising and rehabilitating such sick textile undertakings so as to subserve the interests of general public by augmentation of the products and distribution at fair prices of different varieties of cloth and yarn". The basic objective of the said Act was rehabilitation of the sick textile mills. That was different from the purpose of the present Act. The sick textile units had under them the bulk of their employees as workmen those who came under the provisions of . Section 14 of the said Act statutorily recognises the special position of the workmen as contra distinguished from the other employees by enacting separate provisions in this respect thereon. Further more it has to be borne in mind that the aforesaid 287 Act was concerned with the ensuring; augmentation of production and distribution of certain cloth and yarn which are commodities essential to the national economy being important consumer items Therefore the case of the employees of sick textile undertakings which has been mentioned by the petitioners and argued before us cannot be compared on similar lines in respect of this aspect with the present petitioners. We would have rejected this submission on behalf of the petitioners, had it been necessary for us to do so but in the view that has been taken, it is not necessary. Another item mentioned before us was the employees or Coking Coal Mines Nationalisation Act, 1972. lt has to be borne in mind that the object covered by the scheme of the Act was entirely different from the . The was enacted to provide for the transfer of the interest of the owners of such mines and also the transfer of the interest of owners of coke oven plants with a view to "reorganising and re constructing such coal mines and plants for the purpose of protecting, serving and permitting scientific development of resources of coking coal needed to meet the growing requirement of iron & steel industry". According to the normal prevalent view, the workmen of Coking Coal Mines were sweated labour. These workmen constituted very large percentage of the employees. The act in question namely the recognised the independent existence of the said workmen as a class. It has also to be kept in mind that coking coal is a commodity very vital to the national economy and prime raw materials of iron & steel industry which is a basic industry. The workmen employed in the coal mines were also sweated labour. Their special position was also statutorily recognised in the said Act. Coal is also one of the basic materials required to sustain growth. The provisions of have been considered in detail and the special feature has been taken note of in the case of Tara Prasad Singh etc. vs Union of India & Ors. According to the respondents, Class III and Class IV employees of the General Insurance Company are high wage earners. They are islanders by themselves according to the respondents. It is true that judges should not bring their personal knowledge into action in deciding the controversy before the Courts but if common knowledge is any guide, then undoubtedly these 288 employees are very highly paid in comparison to many others. The object of the is to run the business efficiently so that the funds available might be utilised for socially viable and core projects of national importance. From one point of view the Nationalised Banks and the Insurance Companies for the purpose of applicability or otherwise of the provisions of the cannot be treated as belonging to one class. Historical reasons provide an intelligible differentia distinguishing Nationalised Insurance Companies from the Nationalised Banks. The reason suggested by the respondents was that prior to Banks Nationalisation, Industrial disputes between workmen and the Banks were treated since 1950 on All India basis with the totality of the banks being involved therein. Several awards have been made treating them as such like Shastri Award, 1953. Shastri Award Tribunal was constituted with a view to settle the disputes of the workmen of the Banks with all commercial Banks (excluding Co operative Banks etc.) on the one hand and the employees on the other. Desai Award, 1962 bipartite settlement between Indian Banks Association and the Exchange Banks Association on the one hand and All India Bank Employees Association and All India Bank employees Federation on the other, are some of the examples. As against this, prior to the Act in question before us, disputes between insurance companies and their workmen were settled on independent company basis with no All India projections involved. It may also be noted that unlike the case of some banks, there is no existing award or settlement with the petitioners employees of the general insurance companies and the four insurance companies. The financial resources, structures and functions of the Banks are different from those of the insurance companies. It may also be noted as was pointed out to us on behalf of the respondents that Bank 's Class III and IV employees are about 4,58,000 in 1982 as compared to insurance companies which employ about 25,000 Class Ill and Class IV employees. Therefore for the purpose of rationalisation, the insurance companies wanted to curtail their emoluments on a small scale. It cannot be said that there are no distinguishing factors and that for choosing a particular group for experiment, the respondents should be found guilty of treating people differently while they are alike in all material respects Differentiation is not always discriminatory. If there is a rational nexus on the basis of which differentiation has been made with the object sought to be achieved by particular provision, then such differentiation is not discriminatory and does not 289 violate the principles of article 14 of the Constitution. This principle is too well settled now to be reiterated by reference to cases. There is intelligible basis for differentiation. Whether the same result or better result could have been achieved and better basis of differentiation evolved is within the domain of legislature and must be left to the wisdom of the legislature. Had it been held that the scheme of 1980 was within the authority given by the Act, we would have rejected the challenge to the Act and the scheme under article 14 of the Constitution. It was also urged before us on behalf of the respondents that the petitioners being employees of public sector undertakings, and these are economic instrumentalities of the State and having regard to the contents and contour of the concept of public employment as developed in the Indian legal system, an employee in a public sector can be approximated with and treated as a government servant. Having regard to the principles which govern the employer and employee relationship in the governmental sectors, the conditions of service of employees in public employment should be exclusively governed by the statute and by the rules and regulations framed thereunder. Predication of such power would necessarily exclude the provisions of and the principles of collective bargaining just as these would exclude the principles of contractual relationship in such matters. The point is interesting. However,, in the view we have taken, we need not discuss this aspect any further. It was further submitted on behalf of the respondent that the rationale justification and the genesis of the law of nationalisation being the creation of economic instrumentalities to subserve the constitutional and administrative goals of governance in a social welfare society, the running of public sector undertakings is neither for profit earning of the management nor for sharing such profits with the workmen alone but to utilise the investible funds available as a result of such ventures and undertakings for socially oriented goals laid down by the governmental policies operating on the said sectors. In this connection reference was made before us to the decision in the case of State of Karnataka & Anr. vs Ranganatha Reddy & Anr. etc 290 Employment is the public sector undertakings enjoys a statuh. It was submitted that both historically as well as a matter of law, the public sector undertakings being the economic instrumentalities of the State and discharging the obligations which the State have, the employees of such undertakings in principle cannot be distinguished. from the employees in the government services. In this connection our attention was drawn to the case of Sukhdev Singh & Ors. vs Bhagat Ram Sardar Singh Raghuvanshi & Anr. It was urged that in all constitutional democracies. the relationship between the government and the civil service is exclusively governed by the statutory provisions with the power in the Government to unilaterally alter the conditions of service of the government employees. Reference was made to "The Law of Civil Service " by Kaplan. It was further submitted that in India the law is that origin of the Government service might be. contractual but once appointed to a post under the Government, the government servant acquires a status and the rights and obligations are no longer dependent on the consent of both the parties but by statute. We would have considered these aspects had it been necessary for us to do so but it is not necessary in the view taken. We may reiterate that article 14 does not prevent legislature from introducing a reform i.e. by applying the legislation to some institutions or objects or areas only according to the exigency of the situation and further classification of selection can be sustained on historical reasons or reasons of administrative exigency or piece meal method of introducing reforms. The law need not apply to all the persons. in the sense of having a universal application to all persons. A law can be sustained if it deals equally with the people of well defined class employees of insurance companies as such and such a law is not open to the charge of denial of equal protection on the ground that it had not application to other persons. In the view we have taken of the matter, these applications succeed and the impugned scheme of 1980 must be held to be bad as beyond the scope of the authority of the Central Government under the . The operation of the scheme has been restrained by the order passed as inter in order in these cases. The impugned scheme is therefore quashed, and will not be given effect to. The parties will be at 291 liberty to adjust their rights as if the scheme had not been framed. The application for intervention is allowed. Let appropriate writs be issued quashing the scheme of 1980. This, however, will not prevent the Government, if it so advised, to frame any appropriate legislation or make any appropriate amendment giving power to Central Government to frame any scheme as it considers fit and proper. In the facts and circumstances of these cases and specially in view of the fact that petitioners had themselves at one point of time wanted that new scheme be framed by the Central Government, we direct that parties will pay and bear their own costs in all these matters. The rules are made absolute to the extent indicated above. N.V.K. Petitions allowed.

The respondents who were working in different capacities in the factory of India Security Press at Nasik, an establishment of the appellant, filed an application before the Central Government Labour Court, Bombay under section 33 C(2) of the claiming overtime wages at double the ordinary rate of wages under section 59 of the Factories Act read with section 70 of the Bombay Shops and Establishments Act, 1948. The Labour Court dismissed the contentions of the appellant and granted relief. Hence this appeal. Dismissing the Appeal ^ HELD: The contention that the respondents were not workers within the meaning of section 2(1) of the Factories Act and therefore not entitled to the benefit of section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act 1948 must fail on the plain language of section 70. The main provision of section 70 which is relevant consists of two parts; the first part states that if there be a factory the Shops and Establishment Act will not apply and the second part states that to such a factory 'the provisions of the Factories Act shall, notwithstanding anything contained in that Act, apply to all persons employed in or in connection with the factory". Clearly, the underlined portion (the non obstante clause and the phrase 'all persons employed ') has the effect of enlarging the scope of Factories Act by making it applicable to all persons employed in such factory irrespective of whether employed as workers or otherwise. Therefore although the respondents have not been 'workers ' within the meaning of section 2(1) they will get the benefit of section 59. [298 C F] B.P. Hira, Works Manager, Central Railway, Parel, Bombay, etc. vs C.M. Pradhan etc ; referred to. The contention that by reason of rule 100 made by the State Govern 293 ment under section 64 of the Factories Act the benefit under section 59 was not available to the respondents falling within the exempted category by reason of their holding posts of supervision, has no force. [300F and 295E] It is well known that a non obstante clause is a legislative device which is usually employed to give over riding effect to certain provision over some contrary provision that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in section 70, namely, "notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. Just as because of the non obstante clause the Act is applicable even to employees in the factory who might not be workers ' under section 2(1), the same non obstante clause will keep away the applicability of exemption provisions quarrel those working in the factory The Labour Court was therefore right in taking the view that because of the non obstante clause s 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act, 1948. [300 C G] The contention that the respondents were not workmen under the and as such their application was not maintainable, must be rejected. The contention depends upon the appreciation of evidence led by the parties on the nature of duties and functions performed by the concerned respondents and it was on an appreciation of the entire material that the Labour Court recorded a finding that having regard to the nature of their duties and functions all respondents, other than those who were holding the posts of Senior Supervisors and supervisors, were industrial employees, i. e. workman under the and it is not possible for this Court to interfere with such a finding of fact recorded by the Labour Court. Even otherwise after considering some of the important material on record the court is satisfied that the Labour. Court 's finding is correct. [301 C F]

Appeal No. 1914 of 1968. Appeal by special leave from the judgment and order dated March 12, 1968 of the Allahabad High Court in Special Appeal No. 301 of 1966. C.K. Daphtary, R. N. Banerjee, P. N. Tiwari and 0. C. Mathur, for the appellant. S.C. Agarwala, R. K. Garg and section Chakravarty, for respon dents Nos. 1 and 3. The Judgment of the Court was delivered by Shelat, J. On May 9, 1956 the appellant company appointed respondent 3 as a foreman on probation for a period of six months. On expiry of that period the probationary period was extended from time to time and ultimately respondent 3 was transferred to the labour office of the company. On May 29, 1957, while respondent 3 was still serving his probationary period, the company terminated his service. The matter was thereupon taken up by respondent 1 before the Regional Conciliation Officer, Bareilly who registered the case as Case No. 83B/57. For the reasons hereinafter stated, no conciliation could be arrived at and the State Government declined to make a reference for adjudication under the U.P. (hereinafter called the Act). On the said refusal, respondent 3 filed a writ petition in the High Court for a mandamus. The High Court dismissed the petition on the ground that the decision of the State Government to refer or not to refer a dispute for adjudication was a matter of its discretion. By about the end of 1962 the respondent union made further representation to the State Government and by its order dated August 28, 1963 the Government made a reference of the dispute regarding the said termination of the service of respondent 3 to the Labour Court for adjudication. By its order dated March 22, 1965 the Labour Court rejected the reference on the ground that there was no industrial dispute, and therefore, the reference was not maintainable. Respondents I to 3 thereupon 'filed a writ petition in the High Court which was allowed by a learned Single Judge. An appeal against the said order filed by 373 the appellant company was dismissed. This appeal, by special leave, is directed against the order of the High Court dismissing the appellant company 's writ petition. Counsel for the appellant company, in support of the appeal, raised the following points : (1) Was it possible for the respondent union to validly espouse the cause of respondent 3 when he was not a member at the date when his service was terminated Even if it was, was there in fact an espousal so as to convert his individual dispute into an industrial dispute ? (2) Do the words "at any time" in section 4(k) of the Act have any limitations, or can the Government refer a dispute, for adjudication after the lapse of about six years, as in this case, after the accrual of the cause of the dispute ? (3) In what circumstances can the Government refer such a dispute for adjudication after it has once refused to do so ? The definition of 'industrial dispute ' in section 2(l).of the Act is in the same language as that in section 2(k) of the . The expression 'industrial dispute ', therefore, must bear the same meaning as it is assigned to that expression in the Central Act. It is now well settled by a long series of decisions that notwithstanding the wide language of the definition in section 2(k) of the Central Act, the dispute contemplated there is not an individual dispute but one involving a substantial number of work men. However, a dispute, though originally an individual dispute, may become. an industrial dispute if it were to be espoused and made a common cause by workmen as a body or by a considerable section of them. Section 4(k) of the Act, therefore, must be held to empower the Government to make a reference of such a dispute only for adjudication. It provides that where the State Government is of opinion that any industrial dispute exists or is apprehended, it may, at any time, by order in writing, refer the dispute for adjudication to a labour court or to a tribunal depending upon whether the matter. of the industrial dispute falls under one or the other Schedule to the Act. The first question that falls for determination is whether where a dispute is originally an individual dispute but becomes an industrial one as a result of its being espoused by a union or,a substantial number of workmen, the concerned workman should have been a member of such union at the time when the cause of such dispute arises. It appears that at one time there was a conflict of judicial opinion on this question. Some of the High Courts took the view that in order that an individual dispute may be converted into an industrial dispute on, as aforesaid, its being espoused by a substantial number of workmen, the concerned workman must be a member of the union at the time of the accrual of the cause of the dispute. Thus, in Padarthy, Ratnam & Co. vs Industrial Sup. CI(NP)70 9 374 Tribunal(1) the High Court of Andhra Pradesh held that a dispute simpliciter between an employer and a workman might develop into an industrial dispute if the cause is espoused by a union of which he is a member, and that the membership of the union which would give it the jurisdiction to espouse his cause must be anterior to the date of the dismissal and not subsequent to it. A similar view was also taken by the High Courts of Kerala and Punjab. (see Shamsuddin vs State of Kerala( ') and Khadi Grainodyog Bhawan Workers ' Union vs E. Krishnamurthy, Industrial Tribunal( '). In a later decision, however, the High Court of Punjab appears to have taken a contrary view. In Muller & Phipps (India) (P) Ltd. vs Their Employees ' Union( ') the dispute related to the retrenchment of a workman and the failure of the employer to re employ him in spite of its having re employed two other employees out of their turn as against the turn of the con cerned workman. The High Court rejected the employer 's con tention that the espousal of the union was not valid as it was made after the retrenched workman had ceased on his being retrenched to be a member of the union on the ground that if that contention were to be upheld it would mean that no union can ever espouse the cause of a retrenched workman. In Workmen vs Jamadoba Colliery of Tata Iron and Steel Co. Ltd.( '), the union which espoused the causE of the workman came into existence after his dismissal. The workman naturally became its member after his dismissal. The High Court disagreed with the Tribunal, which had rejected the reference, 'and held that even if, oN the date of the dismissal of a workman, the dispute was an individual dispute,, it may under some circumstances become an industrial dispute on the date of the reference and that the validity of the reference has to be judged on the facts, as they stand on the date of the reference and not at the date of the dismissal. Therefore, even if there was no union at the date of the workman 's dismissal to espouse his cause, if such a union comes into existence before the reference and the dismissed workman becomes its member and the union thereupon espouses his cause that would be sufficient. It also held that there was no principle in support of the view that the union must be in existence at the time of the dismissal. After the decision by this Court in Workmen vs Management of Dimakuchi Tea Estate(") there can be no doubt that though the words "any person" in the definition of an industrial dispute in section 2 (k) of the Central Act are very wide and would on a mere literal interpretation include a dispute relating to any person, considering the scheme and the objects of the Act all disputes are not industrial disputes and that a dispute becomes an industrial dis (1) [19581 (2) (3) A.I.R. 1966 Pun. (4) (5) (6) [19581 S.C.R. 1156. 375 pute where the person in respect of whom it is raised is one in whose employment, non employment, terms of employment or. conditions of labour the parties to the dispute have a direct or substantial interest. The question, therefore, which would arise in cases where the existence of the industrial dispute is challenged, is whether there was between the parties to the reference, i.e, the employer and his workmen, an industrial dispute. The parties to the industrial dispute are obviously the parties to the reference, and therefore the dispute must be an industrial dispute between such parties. It follows, therefore, that though a dispute may initially be an individual dispute, the workmen may make that dispute as their own, that is to say, espouse it on the ground that they have a community of interest and are directly and substantially interested in the employment, non employment, or conditions of work of the concerned workman. This premise pre supposes that though at the date when the cause of the dispute arises that dispute is an individual dispute, such a dispute can become an industrial dispute if it is spoused by the workmen or a substantial section of them after the cause of the dispute, e.g., dismissal, has taken place. It may be that at the date of such dismissal there is no union or that the workmen are not sufficiently organised to take up the cause of the concerned workman and no espousal for that or any other reason takes place at the time when such cause occurs. But that cannot mean that because there was no such union in existence on that date, the dispute cannot become an industrial one if it is taken up later on by the union or by a substantial section of the workmen. If it is insisted that the concerned workman must be a member of the union at the date of his dismissal, the result would be that if at that period of time there is no union in that particular industry and it comes into existence later on then the dismissal of such a workman can never be an industrial dispute although the other workmen have a community of interest in the matter of his dismissal, and the cause for which or the manner in which his dismissal is brought about directly and substantially affects the other workmen. The only condition for an individual dispute turning into an industrial dispute, as, laid down in the case of Dimakuchi Tea Estate(), is the necessity of a community of interest and not whether the concerned workman was or was not a member of the union at the time of his dismissal. The parties to the reference being the employer and his employees, the test must necessarily be whether the dispute referred to adjudication is one in which the workmen or a substantial section of them have a direct and substantial interest even though such a dispute relates to a single workman. It must follow that the existence of such an interest, evidenced by the espousal by them of the cause, must be at the date when the reference is made and not necessarily at the date when the cause occurs, otherwise, as aforesaid, in some (1) ; 376 cases a dispute which was originally an individual one cannot become an industrial dispute. Further, the community of interest does not depend on whether the concerned workman was a member or not at the date when the cause occurred, for, without his being a member the dispute may be such that other workmen by having a common interest therein would be justified in taking up the dispute as their own and espousing it. Any controversy on the question as to whether it is necessary for a concerned workman to be a member of the union which has espoused his cause at the time when that cause arose has been finally set. at rest by the decision in Bombay Union of Journalists vs The "Hindu", Bombay( ') where this Court laid down that the test whether an individual dispute got converted into an industrial dispute depended on whether at the date of the reference the dispute was taken up and supported by the union of workmen of the ,employer against whom the dispute was raised by an individual workman or by an appreciable number of such workmen. (see also Workmen vs M/s Dharampal Premchand (2 ) and Workmen of Indian Express (P) Ltd. vs The Management (I). The argument, therefore, that the reference in this case was not competent on the .ground that the concerned workman was not a member of the union at the date when the cause giving rise to the dispute arose, and that therefore, the union could not have espoused the dispute to convert it into an industrial dispute is not correct and cannot be upheld,. The next question is whether the expression "at any time" in section 4(k) means what its literal meaning connotes, or whether in the context in which it is used it has any limitations. Counsel for the company argued that the concerned workman was admittedly not a member of the respondent union in the beginning of 1959 when the State Government refused to make the reference, that he became a member of the respondent union in July 1962, that it was thereafter that the respondent union revived the said dispute which had ceased to be alive after the Government 's said refusal and that it was at the instance of the Union that the Government later on ,changed its mind and in August 1963 agreed to make the reference. The contention was that the Government having once declined to refer the dispute, could not change its mind after a lapse of nearly six years after the dispute arose and that though the expression "at any time" does not apparently signify any limit, it must be construed to mean that once the Government had refused to make the reference after considering the matter and the employer thereupon had been led to believe that the dispute was not to be agitated in a tribunal and had consequently made his own arrangement, the Government cannot, on a further agitation by the (1) ; (2) (3) [1991] 1 S.C. Cases 228. 377 union, take a somersault and decide to refer it for adjudication. It was argued that if it were so, it would mean that a workman, who after termination of his service, has already obtained another employment, can still go to the union, become its member and ask the union to agitate the dispute by espousing it. Such an action, if permitted, would cause dislocation in the industry as when the employer has in the meantime made his own arrangement by appointing a substitute in place of the dismissed workman on finding that the latter had already found other employment. The legislature, the argument proceeded, could not, therefore, have used the words "at any time" to mean after any, length of time. From the words used in section 4(k) of the Act there can be no doubt that the legislature has left the question of making or refusing to make a reference for adjudication to, the discretion of the Government. But the discretion is neither unfettered nor arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such a dispute must be apprehended when the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the Gov ernment decides to make it an industrial dispute between the employer and his employees either exists or is apprehended. Therefore, the expression "at any time". though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can "at any time", i.e., even when such proceedings have not begun. or are still pending, decide to refer the dispute for adjudication. The expression "at any time" thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression "at any time" in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the section when the dispute is hot an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for,instance, where it is already adjudicated or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence. In the State of Madras vs C. P. Sarathy(1) this Court held on construction of section 1 0 ( 1 ) of the Central Act that the, function of the appropriate Government thereunder is an administrative function. It was so held presumably because the Government cannot go into the merits of the dispute, its function being only to refer such a dispute for adjudication so that the industrial relations bet (1) [19531 S.C.R. 334, at 346. 378 ween the employer and his employees may not continue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible. In the light of the nature of the function of the Government and the object for which the power is conferred on it, it would be difficult to hold that once the Government has refused to refer, it cannot change its mind on a reconsideration of the matter either because new facts have come to light or be cause it had misunderstood the existing facts or for any other relevant consideration and decide to make the reference. But where it reconsiders its earlier decision it can make the reference, only if the dispute is an industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard to that and no other industrial dispute. Sindhu Resettlement Corporation, Ltd. vs Industrial Tribunal( '). Such a view has been taken by the High Courts of Andhra Pradesh, Madras, Allahabad, Rajasthan, Punjab and Madhya Pradesh. (see Gurumurthi (G.) V. Ramulu (K.)( ') Vasudeva Rao vs State of Mysore( ') Rawalpindi Victory Transport Co. (P) Ltd. vs State of Punjab( '), Champion Cycle Industries vs State of U.P. (5), Goodyear (India) Ltd., Jaipur vs Industrial Tribunal (6) and Rewa Coal Fields Ltd. vs Industrial Tribunal, Jabalpur ( 7 ) . The reason given in these decisions is that the function of the Government either under section 10(l) of the Central Act or a similar provision in a State Act being administrative, principles such as res judicata applicable to judicial Acts do not apply and such a principle cannot be imported for consideration when the Government first refuses to refer and later changes its mind. In fact, when the Government refuses to make a reference it does not exercise its power; on the other hand it refuses to exercise its power and it is only when it decides to refer that it exercises its power. Consequently, the power to refer cannot be said to have been exhausted when it has declined to make a reference at an earlier stage. There is thus a considerable body of judicial opinion according to which so long as an industrial dispute exists or is apprehended and the Government is of the opinion that is so, the fact that it had earlier refused to exercise its power does not preclude it from exercising it at a later stage. In this view, the mere fact that there has been a lapse of time or that a party to the dispute was, by the earlier refusal, led to believe that there would be no reference and acts upon such belief, does not affect the jurisdiction of the Government to make the reference. It appears that there was a controversy before the High Court whether there was at all any espousal of the dispute by the respon (1) [19681 , 839. (2) (3) (4) [19641 (5) (6) (7) A.I.R. [19691 M.P. 174. 379 dent union, and if there was, at what stage. The High Court, therefore, got produced before it the record before the conciliation officer. Strictly speaking, in a proceeding for certiorari under article 226, the record which would be produced before the High Court would be that of the Tribunal whose order is under challenge. But if the High Court got produced in the interests of justice the file of the conciliation officer which alone could show whether there was espousal by the union or not, no one could reasonably object to the High Court calling for that record for the purpose of ascertaining whether the stand of the union that it had taken up the cause of respondent 3 was correct or not. As the High Court has said, that file showed that on July 2, 1957 one Har Sahai Singh, the then President of the union, had complained to the Regional Conciliation Officer against the termination of service of respondent 3 and following that complaint, respondent 3 had filed a written statement dated September 4, 1957 which was counter signed by the said Har Sahai Singh in his capacity as the President and presumably, therefore, on behalf of the union. The record also indicated that on that very day, i.e., September 4, 1957, the Conciliation Officer recorded an order that the conciliation proceedings could not be proceeded with as "no authorised agent" of the union appeared before him. Presumably, the Conciliation Officer in course of time must have made his failure report. From these facts the following conclusions must emerge : (1) that the Conciliation Officer had taken cognisance of the dispute, (2) that he took that dispute as having been espoused by the union through its president, (3) that thereupon he fixed September 4, 1957 as the date for holding the conciliation proceedings and informed the parties to attend before him, and (4) that as "no authorised agent" on behalf of the union appeared before him, he recorded that the conciliation proceedings could not go on. These facts clearly go to show that the then president of the union had not made the said complaint in his personal capacity but as the president representing the union. This is borne out to a certain extent by a subsequent resolution of the executive body of the union dated February 28, 1.963 which recites that the executive committee of the union will continue to take up the cause of respondent 3 as it had been so far doing. But Mr. Daphtary emphasised that even this resolution did not mean that the union had taken up the cause of respondent 3 as its own since the resolution uses the word 'pairavi ' and not espousing or sponsoring the workman 's cause. Pairavi, according to him, means acting as the agent of a party to a proceeding and not being a party to the proceeding which would be the position had the union taken up the Complaint as its own. In our view we need not look at the said .resolution in so narrow a manner, for, the facts taken as a whole indicate that the union had in fact taken up the cause of the workman. The President evidently could not have countersigned the 380 written statement of the concerned workman and the Conciliation Officer could not have given a notice to the union to appear before him and could not have recorded that he did not proceed with the conciliation proceedings as no authorised agent of the union appeared before him unless every one understood that the union had taken up the cause of the workman. The notice dated August 2, 1957 issued by the Conciliation Officer after the union President had lodged his said complaint is on record and shows that it was issued to the management and the union calling upon both of them to appoint their respective representatives on the conciliation board as required by the Government Order dated July 14, 1954. It also shows that the Officer treated the dispute as having been espoused by the union as the notice recites the dispute as an industrial dispute. The subsequent facts would seem to indicate that the Govern ment declined to make the reference presumably because of the report of the Conciliation Officer that in spite of the said notice no authorised agent of the union had appeared before him and therefore no conciliation had been possible. As already stated, a writ petition to compel the Government to make the reference proved unsuccessful. It may be that the respondent union may have decided to press for the reference after the concerned workman became its member. That fact, however, is irrelevant for the purposes of the jurisdiction of the Government under section 4(k). One fact, however, is clear that the respondent union carried on correspondence with the Labour Ministry and also passed the said resolution dated February 28, 1963. The correspondence which was carried on from about November 1962 shows that the union pressed the Government to make the reference and the Government ultimately made the reference in August 1963. That correspondence further shows that the Government at one stage pointed out that the union had in 1957 failed to appear before the Conciliation Officer although it had espoused the dispute and that that fact had influenced the Government 's refusal then to refer the dispute for adjudication. The union pointed out (1) that at the time when the said complaint was lodged in 1957 before the Conciliation Officer the union 's 'president was one Varma, (2) that in the meantime elections for the union 's office bearers took place when the said Har Sahai Choudhury and one Girish Chandra Bharati were elected president and working president respectively ' (3) that the above mentioned individuals appeared before the conciliation officer, but the said Varma did not, as he had failed in the elections, (4) that dispute arose about the said elections and the Registrar of the Trade Union , refused to recognise the new office bearers, and ( I) that the conciliation officer also refused to recognise the said Har Sahai Choudhary and Bharati a,; the duly elected president and working president, and therefore, although both of 381 them attended the meeting fixed by that officer, the latter recorded that no authorised agent of the union had appeared before him and no conciliation, therefore, could be arrived at. It thus appears from the correspondence that following the espousal of the said dispute by the union, two of the office bearers of the union did appear before the conciliation officer but were not recognised as the authorised agents of the union on account of the said disputes about the elections. If the Government, therefore, had refused then to make the reference on the ground that though the union had espoused the workman 's cause it had not cared to appear at the conciliation proceedings, the Government 's decision refusing to make the reference was clearly on misapprehension. If the Government subsequently found that its earlier decision was based on such a misapprehension and on facts brought to its notice it reconsiders the matter and decides to make the reference it is difficult to say that it exercised the discretion conferred on it by section 4 (k) in any inappropriate manner. But that does not mean that if section 4(k) is construed to mean that the Government can reconsider its earlier decision. such a construction would result in unions inducing workmen to join them as members or to shift their membership from one to the other rival union on promises by such union to revive disputes which are already dead or forgotten and then press the Government to make a reference in relation to them . There is no reason to think that the Government would not consider the matter properly or allow itself to be stampeded into making references in cases of old or stale disputes or reviving such disputes on the pressure of unions. It is true that where a Government reconsiders its previous decision and decides to make the reference, such a decision might cause inconvenience to the employer because the employer in the meantime might have acted on the belief that there would be no proceedings by way of adjudication of the dispute between him and his workmen. Such a consideration would, we should think. be taken into account by the Government whenever, in exercise of its discretion, it decides to reopen its previous decision as also the time which has lapsed between its earlier decision and the date when it decides to reconsider it. These are matters which the Government would have to take into account while deciding whether it should reopen its former decision in the interest of justice and industrial peace but have nothing to do with its juris diction under section 4(k) of the Act. Whether the intervening period may be short or long would necessarily depend upon the facts and circumstances of each case, and therefore, in construing the expression "at any time" in section 4(k) it would be impossible to lay down any limits to it. In the present case though nearly four years had gone by since the earlier decision not to make the reference, if the Government 382 was satisfied that its earlier decision had been arrived at on a mis apprehension of facts, and therefore, required its reconsideration, neither its decision to do so nor its determination to make the reference can be challenged on the ground of want of power. The fact that the dispute between the concerned workman and the management had become an industrial dispute by its having been espoused by the union since 1957 cannot be disputed. The fact that the workman was then not a member of the union does not preclude or negative the existence of the community of interest nor can it disable the, other workmen through their union from making that dispute their own. The fact that the Government refused then to exercise its power cannot mean that the dispute had ended or was in any manner resolved. In the absence of any material it Is not possible to say that with the refusal of the Government then and the dismissal of the writ petition by the High Court in March 1959 the dispute, which was already an industrial dispute, had ceased to subsist or that on respondent 3 joining the union in July 1962 the union revived a dispute which was already dead and not in existence. His becoming a member in July 1962 was as immaterial to the power of the Government under section 4(k) as the fact of his not being a member at the time when his cause was espoused in 1957 by the union and the dispute becoming thereupon an industrial dispute. The question of his membership, therefore, haS to be kept apart from the right of the other workmen to espouse his cause and the power of the Government under section 4(k). It may be that his becoming a member in 1962 may have been the cause of the union 's subsequent efforts to persuade the Government to reconsider its decision and make a reference on proper facts being placed before it and its earlier misapprehensions re moved. But that again has nothing to do with the jurisdiction of the Government under section 4(k) of the Act. In our view, the appellant company fails on both the points and its appeal against the High Court 's decision becomes unsustainable. Accordingly, we dismiss the appeal with costs. V.P.S. Appeal dismissed.

The appellant was the owner of 5 buses. The Vehicles stood in the name of the respondent, appellant 's benamidar, and the stage carriage permits were also obtained in the respondent 's name. The appellant, who was running the buses, flied a suit claiming the buses along with their permits. It was decreed by the trial court, and the lower appellate court confirmed the decree in respect of 4 buses. The High Court, in further appeal, held that the appellant and the respondent together practised fraud in contravention of as. 41(1) and 60(1)(c) of the in as much as the respondent representing himself to be the owner falsely obtained the permits in his own name, and allowed the true owner, who had no permit to conduct the actual business and dismissed the suit in toto. In appeal this Court, HELD: There is nothing in the , which expressly or by implication bars benami transactions or persons owning buses benami and applying for permits on that basis. Section 42(1) does not require that the owner himself should obtain the permit; it only requires the owner to see that the transport vehicles shall not be used except in accordance with the conditions of the permit. The definition of 'permit ' itself shows that all permits need not be in the name of the owner because the latter part of the definition shows that it is only in the case of a private earner or a public carrier that a permit has to be in the owner 's name. The same inference follows from the definitions of 'private carrier ' and 'public carrier '. [899 H] The amended section 60(1)(c) provides for one of the contingencies in which permit can be cancelled. According to it, it is permissible for the Transport Authority to cancel a permit if the holder of it ceases to own the vehicle covered by the permit. It is only a permissive clause and the Transport Authority has only been g/yen a discretion to cancel the permit in that contingency. It may or may not cancel it, even if the holder of the permit ceased to own the vehicles covered by it. But it is by no means necessary that cl. (c) should be applicable to the case of every permit holder. There may be permit holders who own the vehicle covered by the permit and there may be permit holders who do not own the vehicle. This clause appears to apply only to the former case and not to the latter. [900] Veerappa Pillai vs Raman & Raman, ; , followed. Khallil ul Rahman Khan vs State Transport Appellate Tribunal, A.I.R. 1963 All. 383, Gut Narayan vs Sheolaf Singh, and C.I.T. Gujarat vs Abdul Rahim & Co., , approved. Varadarajulu Naidu vs Thavasi Nadar, (1963) 2 M.LJ. 20 and Chavali Venkataswami vs Chavali Kotayya, (1959) 2 and W.R. 407, disapproved.

Appeals Nos. 64 to 66 of 1954. Appeals under article 132(1) of the Constitution of India from the Judgment and Order dated the 13th February, 1954, of the High Court of Judicature at Bombay in Special Applications Nos. 259, 288 and 289 of 1954 respectively. M. C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India (G. N. Joshi, M. M. Desai, Porus A. Mehta and P. G. Gokhale, with them) for the appellant in all the appeals. N. A. Palkhivala, J. B. Dadachanji, J. K. Munshi and Rajinder Narain for respondents Nos. 1 and 2 in C. A. No. 64. Frank Anthony, J. B. Dadachanji, J. K. Munshi and Rajinder Narain for respondent No. 3. N. A. Palkhivala, J. B. Dadachanji, J. K. Munshi and Rajinder Narain for the respondent No. I in C. A, No. 65. 571 Frank Anthony and Rajinder Narain for respondent No. 2. N. A. Palkhivala, Frank Anthony, J. B. DadachanjiJ. K. ' Munshi and Rajinder Narain for respondent No. I in C. A. No. 66. Frank Anthony, J. B. Dadachanji, J. K. Munshi and Rajinder Narain for respondent No. 2. 1954. May 26. The Judgment of the Court was delivered by DAS J. These three appeals, filed by the State of Bombay, with a certificate granted by the Bombay High Court, are directed against the Judgment and Order pronounced by that High Court on the 15th February, 1954, on three Civil Applications under article 226. By that Judgment and Order the High Court held that the circular order No. SSN 2054(a) issued by the State of Bombay, Education Department, on the 6th January, 1954, was bad in that it contravened the provisions of article 29(2) and article 337 and directed the issue of a writ prohibiting the State from enforcing the order against the authorities of Barnes High School established and run by the Education Society of Bombay (hereinafter referred as the Society). The Society, which is the first respondent in Appeal No. 64 of 1954, is a Joint Stock Company incorporated under the Indian Companies Act, 1913. The other two respondents in that appeal Venble Archdeacon A. section H. Johnson and Mrs. Glynne Howell are members and Directors of the Society. The Ven 'ble Archdeacon A. section H. Johnson is also the Secretary of the Society. Both of them are citizens of India and are members of the Anglo Indian Community. The mother tongue of these respondents as of other members of the Anglo Indian Community is English. In the State of Bombay there are in all 1403 Secondary Schools. 1285 of these Schools import education through the medium of some language other than English. The remaining 118 Schools have adopted English as the medium of instruction. Thirty out of these 118 Schools are Anglo Indian Schools. In these thirty Schools there are three thousand Anglo Indian 572 students forming 37 per cent. of the total number of students receiving instruction in those Anglo Indian Schools. The rest 63 per cent. consist of non Anglo Indian students. In furtherance of its object the Society in 1925 established and since then has been conducting and running a School known as Barnes High School at Deolali in Nasik District in the State of Bombay. The School is a recognized Anglo Indian School having Primary, Secondary and High School classes. The School receives considerable aid from the State. The total number of students in the School in December, 1953, was 415, out of which 212 were Anglo Indians and the remaining 203 belonged to other Indian Communities. In all the classes in the said School English is used as the medium of instruction and has been so used since the inception of the School. The entire staff of the School consist of 17 teachers who, with the exception of one, are trained and qualified to teach only in English, the exception being the teacher who teaches Hindi which is, the second language taught in that School. On the 16th December, 1953, the Inspector of Anglo Indian Schools, Bombay State, and Educational Inspector, Greater Bombay, sent a circular letter to the Headmaster of Barnes High School intimating that the Government had under consideration the issue of orders regulating admissions to Schools in which the medium of instruction was English. The orders under consideration were stated to be on the following lines, namely, (1) that from the next School year admissions to English medium School should only be confined to children belonging to the Anglo Indian and European Communities, and (2) that those pupils who, 'prior to the issue of the orders, were studying in recognized Primary or Secondary English medium Schools, could continue to do so. The letter in conclusion advised the Headmaster not to make any admission for the academic year beginning from January, 1954, of pupils other than Anglo Indians or Europeans pending further orders which, it was said, would issue shortly. The contemplated order came on the 6th January, 1954, in the shape of circular No. SSN 2054(a) headed 573 "Admissions to Schools teaching through the medium of English". In paragraphs 1, 2 and 3 of this circular reference was made to the development of the policy of the Government regarding the medium of instruction at the Primary and Secondary stages of education. It was pointed out that since 1926 27 the University of Bombay permitted pupils to answer questions in modern Indian languages at the Matriculation examination in all subjects except English and other foreign languages and that this had resulted in 1285 out of 1403 schools in the State ceasing to use English as the medium of lnstruction. It was then stated that in 1948 instructions were issued to all English teaching schools that admissions to such Schools should ordinarily be restricted to pupils who did not speak any of the regional languages of the State or whose mother tongue was English. It was said that in 1951, after a review of the position, a general policy had been laid down to the effect that admission to such schools should be restricted only to four categories of children therein mentioned. Reference was then made to the recommendations of the Secondary Education Commission that the mother tongue or the regional language should generally be the medium of instruction throughout the Secondary school stage, subject to the. provision for special facilities for linguistic minorities. In paragraph 4 of the Circular order it was stated that the Government felt that the stage had then been reached for the discontinuance of English as a medium of instruction and that the Government had decided that subject to the facilities to be given to linguistic minorities all special and interim concessions in respect of admission to Schools (including Anglo Indian Schools) using English as the medium of instruction, should thereafter be withdrawn. Then came the operative part of the order, the relevant portion of which is set out below: "5. Government has accordingly decided as follows : Subject to the exceptions hereinafter provided, no primary or secondary school shall from the date of these orders admit to a class where English is used as 574 a medium of instruction any pupil other than a pupil belonging to a section of citizens the language of which is English namely, Anglo Indians and citizens of nonAsiatic descent. " There were three exceptions made to this general order in favour of three categories of students who, prior to the date of the order, were studying through the medium of English. Provision was made for admission of foreign pupils, other than those of Asiatic descent, belonging to foreign possessions in India, to Schools using English as a medium of instruction or to any other School of their choice. The concluding paragraph of the Order was in the following terms : "7. All Schools (including Anglo Indian Schools) using English as a medium of instruction should regulate admissions according to this circular. With a view to facilitating the admission of pupils who under these orders are not intended to be educated through the medium of English, these schools are advised to open progressively divisions of Standards using Hindi or an Indian language as the medium of instruction, starting from Standard I in 1954. Government will be prepared to consider the payment of additional grant on merits for this purpose. " The above order was followed by another Circular No. SSN 2054 (b) issued on the same date drawing the attention of the heads of all Anglo Indian Schools to the Circular No. SSN 2054(a) of the same date, and requesting them to regulate thereafter admissions to their Schools in accordance with that circular. It was stated that the orders in that circular were not intended to affect the total grant available for distribution to Anglo Indian Schools under the Constitution but that the Government would be prepared to consider, in consultation with the State Board of Anglo Indiain Education, whether in consequence of this order, any change was necessary in the existing procedure for the equitable distribution of the total grant among individual Anglo Indian Schools. In conclusion the attention of the Headmasters was particularly invited to the concluding sentence of paragraph 7 of that circular order, and it was pointed out that 575 the grants contemplated therein were intended to be in addition to, the grants available under article 337. Major Pinto, who is a citizen of India, belongs to the Indian Christian Community. He claims that his mother tongue, as that of a section of the Indian Christian Community, is English and that his entire family speak and use English at home. Two of his sons were then studying in the Barnes High School and were being educated through the medium of English. On 2nd February, 1954, Major Pinto accompanied by his daughter Brenda approached the Headmaster of Barnes High School seeking admission for her to the said School. He was informed by the Headmaster about the order issued by the State of Bombay on the 6th January, 1954, and was told that, in view of the said order, the Headmaster was compelled to refuse admission to her since she did not belong to the AngloIndian Community nor was she of non Asiatic descent, although she had all the necessary qualifications for admission to the said School. Dr. Mahadeo Eknath Gujar is also a citizen of India and is a member of the Guzrati Hindu Community. His mother tongue is Guzrati. I le desires that his son Gopal Mahadeo Gujar should become a medical practitioner and go abroad for higher medical studies and qualifications and thought that his son should be educated through the medium of English. He found the Barnes High School, which teaches through the medium of English, as suitable for the needs of his son. Accordingly on the 1st February, 1954, Dr. Gujar accompanied by his son approached the Headmaster of Barnes High School seeking admission for his son to the said School but the Headmaster, in view of the Government Circular Order, felt bound to turn down such request as the boy did not belong to the AngloIndian Community and was not of non Asiatic descent, although he had all the necessary qualifications for admission to the school. There have been similar other applications for admission which have had to be rejected on similar grounds, 576 Thereupon the Society and Ven 'ble Archdeacon A.S.H. Johnson and Mrs. Glynne Howell in February, 1954, presented before the High Court of Bombay the Special Civil Application No ' 259 of 1954 under article 226 of the Constitution praying for the issue of a writ in the nature of mandamus restraining the State of Bombay, its Officers, servants and agents from enforcing the said order and from taking any steps or proceedings in 'enforcement of the same and compelling the respondent to withdraw or cancel the said purported order and to allow the petitioner to admit to any standard in the said school any children of nonAnglo Indian citizens or citizens of Asiatic descent and to educate them through the medium of English language. Likewise Major Pinto and his daughter Brenda and Dr. Gujar and his son Gopal made similar applications, being Nos. 288 and 289 of 1954 respectively, praying for similar reliefs. The three applications were consolidated on llth February, 1954, and were heard together and were disposed of by the same Judg ment and Order pronounced on the 15th February, 1954. The High Court accepted the petitions and made an order as prayed. The State of Bombay has now come up in appeal against the said Orders. On the facts of these cases two questions arise namely (1) as to the right of students who are not Anglo Indians or who are of Asiatic descent to be admitted to Barnes High School which is a recognized Anglo Indian School which imparts education through the medium of English, and (2) as to the right of the said Barnes High School to admit non Anglo Indian students and students of Asiatic descent. The ques tions, thus confined to the particular facts of these cases, appear to us to admit of a very simple solution, as will be presently explained. Re (1) : As already indicated Barnes High School is a recognized Anglo Indian School which has all along been imparting education through the medium of English. It receives aid out of State funds. The daughter of Major Pinto and the son of Dr. Gujar are citizens of India and they claim admission to Barnes High School in exercise of the fundamental right said 577 to have been guaranteed to them by article 29(2) of the Constitution. The School has declined to admit either of them in view of the circular order of the State of Bombay. The provisions of the circular order, issued by the State of Bombay oh the 6th January, 1954, have already been summarised above. The operative portion of the order, set forth in clause 5 thereof, clearly forbids all Primary or Secondary Schools, where English is used as a medium of instruc. tion, to admit to any class any pupil other than a pupil belonging to a section of citizens, the language of which is English namely Anglo Indians and citizens of non Asiatic descent. The learned Attorney Generalcontends that this clause does not limit admission only, to Anglo Indians and citizens of non Asiatic descent, but permits admission of pupils belonging to any other section of citizens the language of which is English. He points out that, one of the meanings of the word II namely " as given in Oxford English Dictionary, Volume VII, p. 16 is " that id to say " and he then refers us to the decision of the Federal Court in Bhola Prasad vs The King Emperor (1), where it was stated that the words "that is to say " were explanatory or illustrative words and not words either of amplification or limitation. It should, however, be remembered that those observations were made in connection with one of the Legislative heads, namely entry No. 31 of the Provincial Legislative List. The fundamental proposition enunciated in The Queen vs Burah (2) was that Indian Legislatures within their own sphere had plenary powers of legislation as large and of the same nature as those of Parliament itself. In that view of the matter every entry in the legislative list had to be given the widest connotation and it was in that context that the words " that is to say," relied upon by the learned Attorney General, were interpreted in that way by the Federal Court. To do otherwise would have been to cut down the generality of the legislative head itself. The same reason cannot apply to the construc tion of the Government order in the present case for the considerations that applied in the case before the (1) at p. 25. (2) 74 578 Federal Court have no application here. Ordinarily the word " namely " imports enumeration of what is comprised in the preceding clause. In other words it ordinarily serves the purpose of equating what follows with the clause described before. There is good deal of force, therefore, in the araument that the order restricts admission only to Anglo Indians and citizens of nonAsiatic descent whose language is English. This inter. pretation finds support from the decision mentioned in clause 4 to withdraw all special and interim concessions in respect of admissioni to Schools referred to in clause 4. Facilities to linguistic minorities provided for in the circular order, therefore, may be read as contem plating facilities to be given only to the Anglo Indians and citizens of non Asiatic descent. Assuming, however, that under the impugned order a section of citizens, other than Anglo Indians and citizens of non Asiatic descent, whose language is English, may also get admission, even then citizens,, whose language is not English, are certainly debarred by the order from admission to a School where English is used as 'a medium of instruction in all the clases. Article 29(2) ex facie puts no limitation or qualification on the expression " citizen. " Therefore, the construction sought to be put upon clause 5 does not apparently help the learned Attorney General, for even on that construction the order will contravene the provisions of article 29(2). The learned Attorney General then falls back upon two contentions to avoid the applicability of article 29(2). In the first place he contends that article 29(2) does not confer any fundamental right on all citizens generally but guarantees the rights of citizens of minority groups by providing that they must not be denied admission to educational institutions maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them and he refers us to the marginal note to the article. This is certainly a new contention put forward before us for the first time. It does not appear to have been specifically taken in the affidavits in opposition filed in the High Court and there is no indication in the 579 Judgment under appeal that it was advanced in this form before the High Court. Nor was this point specifically made a ground of appeal in the petition for leave to appeal to this Court. Apart from this, the contention appears to us to be devoid of merit. Article 29(1) gives protection to any section of the citizens having a distinct language, script or culture by guaranteeing their right to conserve the same. Article 30(1) secures to all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. Now suppose the State maintains an educational institution to help conserving the distinct language, script or culture of a section of the citizens or makes grants in aid of an educational institution established by a minority community based on religion or language to conserve their distinct language, script or culture, who can claim the protection of article 29(2) in the matter of admission into any such institution ? Surely the citizens of the very section whose language, script or culture is sought to be conserved by the institution or the citizens who belong to the very minority group which has established and is administering the institution, do not need any protection against themselves and therefore article 29(2) is not designed for the protection of this section or this minority. Nor do we see any reason to limit article 29(2) to citizens belonging to a minority group other than the section or the minorities referred to in article 29(1) or article 30(1), for the citizens, who do not belong# to any minority group, may quite conceivably need this protection just as much as the citizens of such other minority groups. If it is urged that the citizens of the majority group are amply protected by article 15 and do not require the protection of article 29(2), then there are several obvious answers to that argument. The language of article 29(2) is wide and unqualified and may well cover all citizens whether they belong to the majority or minority group. Article 15 protects all citizens against the State whereas the protection of article 29(2) extends against the State or anybody who denies the right conferred by it. Further article 15 protects all citizens against discrimination generally but article 29(2) is a protection against a particular 580 species of wrong namely denial of admission into educational institutions of the specified kind. In the next place article 15 is quite general and wide in its terms and applies to all citizens, whether they belong to the majority or minority groups, and gives protection to all the citizens against discrimination by the State on certain specific grounds. Article 29(2) confers a special right on citizens for admission into educational institutions maintained or aided by the State. To limit this right only to citizens belonging to minority groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have no special educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. We see no cogent reason for such discrimination. The heading under which articles 29 and 30 are ground together namely " 'Cultural and Educational Rights " is quite general and does not in terms contemplate such differentiation. If the fact that the institution is maintained or aided out of State funds is the basis of this guaranteed right then all citizens, irrespective of whether they belong to the majority or minority groups, are alike entitled to the protection of this fundamental right. In view of all these considerations the marginal note alone, on which the AttorneyGeneral relies, cannot be read as controlling the plain meaning of the language in which article 29(2) has been couched. Indeed in The State of Madras vs Srimathi Champakam Dorairajan (1), this Court has already held as follows: " It will be noticed that while clause (1) protects the language, script or culture of a section of the citizens, clause (2) guarantees the fundamental right of an individual citizen. The right to. get admission into any educational institution of the kind mentioned in clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. " In our judgment this part of the contention of the learned Attorney General cannot be sustained. (1) ; at P. 530. 581 The second part of the arguments of the learned Attorney General hinges upon the word "I only " to be found in article 29(2). His contention is that the impugned order does not deny admission to any citizen on the ground only of religion, race, caste, language or any of them. He maintains with considerable emphasis. that it is incumbent on the State to secure the advancement of Hindi which is ultimately to be our National language and he stresses the desirability of or even the necessity, generally acknowledged by educationists, for imparting education through the medium of the pupil 's mother tongue. We have had equally emphatic rejoinder from learned counsel appearing for the different respondents. Characterising the impugned circular as an unwarranted and wanton encroachment on the liberty of the parents and guardians to direct the education and upbringing of their children and wards reliance has been placed on the following observations of McReynolds J. in Pierce vs Society of Sisters of Holy Names(1) : " The fundamental theory of liberty upon which all Governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. " It is also urged that the main, if not the sole, object of the impugned order is to discriminate against, and if possible to stifle the language of the Anglo Indian Community in utter disregard of the constitutional inhibition. It is pointed out that to compel the Anglo Indian Schools to open parallel classes in any Indian language will not necessarily facilitate the advancement of the Hindi language for the language adopted for such parallel classes may not be Hindi. Further the opening of parallel classes in the same School with an Indian language as the medium of instruction while the pupils in the other classes are taught in English will certainly not be conducive to or promote the conservation of the distinct language, script or culture which (1) ; 268 U.S. 508; at p. 1078. 582 is guaranteed by article 29(1) to the Anglo Indian Community as a section of the citizens. It is equally difficult, it is said, to appreciate why the salutory principle of imparting education through the medium of the pupil 's mother tongue should require that a pupil whose mother tongue is not English but is, say, Guzrati, should be debarred from getting admission only into an Anglo Indian School where the medium of instruction is English but not from being admitted into a School where the medium of instruction is a regional language, say Konkani, which is not the mother tongue of the pupil. The rival arguments thus formulated on both sides involve questions of State policy on education with which the Court has no concern. The American decisions founded on the 14th amendment which refers to due process of law may not be quite helpful in interpretation of our article 29. We must, therefore, evaluate the argument of the learned Attorney General on purely legal considerations bearing. on the question of construction of article 29(2). The learned Attorney General submits that the impugned order does not deny to pupils who are not Anglo Indians or citizens of non Asiatic descent, admission into an Anglo Indian School only on the ground of religion, race, caste, language or any of them but on the ground that such denial will promote the advancement of the national language and facilitate the imparting of education through the medium of the pupil 's mother tongue. He relies on a number of decisions of the High Courts, e.g., Yusuf Abdul Aziz vs State (1), Sm. Anjali Roy vs State of West Bengal (), The State of Bombay vs Narasu AppaMali (3), Srinivasa Ayyar vs Saraswathi Ammaland Dattatraraya Motiram More vs State of BombayThese decisions, it should, be noted, were concernedwith discrimination prohibited by article 15 which deals with discrimina. tion generally and not with denial of admission into educational institutions of certain kinds prohibited by article 29(2). It may also be mentioned that this (1) A.I.R 1951 Bom, 470. (2) A.I.R 1952 Cal. (3) A.I.R. 1952 Bom. (4) A.I.R. 1952 Mad. 193. (5) A.I.R. 1953 Bom. 583 Court upheld the actual decision in the first mentioned Bombay case not on clause (1) but on clause(3) of article 15. These cases, therefore, have no direct bearing on article 29(2). The arguments advanced by the learned Attorney General overlook the distinction between the object or motive underlying the impugned order and the mode and manner adopted therein for achieving that object. The object or motive attributed by the learned Attorney General to the impugned order is. undoubtedly a laudable one but its validity has to be judged by the method of Its operation and its effect on the fundamental right guaranteed by article 29(2). A similar question of construction arose in the case of Punjab Province vs Daulat Singh (1). One of the ques tions in that case was whether the provision of the new section 13 A of the Punjab Alienation of Land Act was ultra vires the Provincial Legislature as contravening sub section (1) of section 298 of the Government of India Act, 1935, in that in some cases that section would operate as a prohibition on the ground of descent alone. Beaumont J. in his dissenting judgment took the view that it was necessary for the Court to consider the scope and object of the Act which was impugned so as to determine the ground on which such Act was based, and that if the only basis for the Act was discrimination on one or more of the grounds specified in section 298 sub section (1) then the Act was bad but that if the true basis of the Act was something different the Act was not invalidated because one of its effects might be to invoke such discrimination In delivering the Judgment of the Board Lord Thankerton at page 74 rejected this view in the words following: " Their Lordships are unable to accept this as the correct test. In their view, it is not a question of whether the impugned Act is based only on one or more of the grounds specified in section 298 sub section (1), ,but whether its operation may result in a prohibition only on these grounds. The proper test as to whether there is a contravention of the sub section is to ascertain the reaction of the impugned Act on the personal right conferred by the subsection, and, while the scope (1) (1916) L.R. 73 I.A. 59, 584 and object of the Act may be of assistance in deter. mining the effect of the operation of the Act on a proper construction of its provisions, if the effect of the Act so determined involves an infringement of such personal right, the object of the Act, however laudable, will not obviate the prohibition of sub section (1). " Granting that the object of the impugned order before us was what is claimed for it by the learned Attorney General, the question still remains as to how that object has been sought to be achieved. Obviously that is sought to be done by denying to all pupils, whose mother tongue is not English, admission into any School were the medium of instruction is English. Whatever the object, the immediate ground and direct cause for the denial is that the. mother tongue of the pupil is not English. Adapting the language of Lord Thankerton, it may be said that the laudable object of the impugned order does not obviate the prohibition of article 29(2) because the effect of the order involves an infringement of this fundamental right, and that effect is brought about by denying admission only on the ground of language. The same principle is implicit in the decision of this Court in The State, of Madras vs Srimathi Champakam Dorairajan (1). There also the object of the impugned communal G.O. was to advance the interest of educationally backward classes of citizens but, that object notwithstanding, this Court struck down the order as unconstitutional because the modus operandi to achieve that object was directly based only on one of the forbidden grounds specified in the article. In our opinion the impugned order offends against the fundamental right guaranteed to all citizens by article 29(2). Re. 2: Coming to the second question as to whether the impugned order infringes any constitutional right of Barnes High School, the learned AttorneyGeneral contends that although any section of the citizens having distinct language, script or culture of its own,has under article 29(1) the right to conserve the same and although all minorities, whether based on religion or language, have, under article 30(1), the right (1) ; at p. 530. 585 to establish and administer educational institutions of their choice, nevertheless such sections. or minorities cannot question the power of the State to make reasonable regulations for all Schools including a requirement that they should give instruction in a particular language which is regarded as the national language or to prescribe a curriculum for institutions which it supports. Undoubtedly the powers of the State in this behalf cannot be lightly questioned and certainly not in so far as their exercise is not inconsistent with or contrary to the fundamental rights guaranteed to the citizens. Indeed in the cases of Robert T. Meyer vs State of Nebraska (1) and August Bartels V. State of Iowa (2) the Supreme Court of the United States definitely held that the State 's police power in regard to education could not be permitted to override the liberty protected by the 14th amendment to the Federal Constitution. That is how those cases have been understood by writers on American Constitutional Law. [See Cooley 's Constitutional Limitations, Volume 11, page 1345, and Willis, page 64.] The statutes impugned in these cases provided: (1)That no person should teach any subject to any person in any language other than the English language, and (2)That languages other than English may be taught only after the pupil had passed the 8th grade. A contravention of those two sections was made punishable. In the first mentioned case only the first part of the prohibition was challenged and struck down and in the second case both the provisions were declared invalid. The learned Attorney General informed us that in 29 States in U.S.A. legislation had made compulsory provision for English as the medium of instruction. Those statutes do not appear to have been tested in Court and the Attorney General cannot, therefore, derive much comfort from the fact that 29 States have by legislation adopted English as the medium of instruction. The learned Attorney General (1) ; ; (2) ; ; , 75 586 also relies on the case of Ottawa Separate Schools Trustees vs Mackell(1). That case does not help him either, because in that case the schools were classified as denominational purely on the ground of religion. They were not classified according to race or language. It was contended that the kind of school that the trustees were authorised to provide was the school where education was to be given in such language as the trustees thought fit. Their Lordships of the Judicial Committee rejected this contention with the following observations: " Their Lordships are unable to agree with this view. The 'kind ' of school referred to in sub section 8 of section 79 is, in their opinion, the grade or character of school, for example, 'a girls ' School, ' 'a boys ' school, ' or 'an infants ' school, ' and a I kind ' of school, within the meaning of that sub section, is not a school where any special language is in common use. " Where, however, a minority like the Anglo Indian Community, which is based, inter alia, on religion and language, has the fundamental right to conserve its language, script and culture under article 29(1) and has the right to establish and administer educational institutions of their choice under article 30(1), surely then there must be implicit in such fundamental right the right to impart instruction in their own institutions to the children of their own Community in their own language. To hold otherwise will be to deprive article 29(1) and article 30(1) of the greater part of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter to it. We now pass on to article 337 which is in Part XVI under the heading " Special Provisions relating to certain classes. " Article 337 secures to the Anglo Indian Community certain special grants made by the Union and by each State in respect of education. The second paragraph of that article provides for progressive diminution of such grant until such special grant (1) , 587 ceases at the end of ten years from the commencement of the Constitution as mentioned in the first proviso to that article. The second proviso runs as follows: " Provided further that no educational institution shall be entitled to receive any grant under this article unless at least forty per cent. of the annual admissions therein are made available to members of communities other than the Anglo Indian community. " It is clear, therefore, that the Constitution has imposed upon the educational institution run by the Anglo Indian Community, as a condition of such special grant, the duty that at least 40 per cent. of the annual admissions therein must be made available to members of communities other than the Anglo Indian Community. This is undoubtedly a constitutional obligation. In so far as clause 5 of the impugned order enjoins that no Primary or Secondary school shall from the date of this order admit to a class where English is used as the medium of instruction any pupil other than the children of Anglo Indians or of citizens of non Asiatic descent, it quite clearly prevents the Anglo Indian Schools including Barnes High School from performing their constitutional obligations and exposes them to the risk of losing the special grant. The learned Attorney General refers to clause 7 of the impugned order and suggests that the authorities of Anglo Indian Schools may still discharge their constitutional obligations by following the advice given to them in that concluding clause. The proviso to article 337 does not impose any obligation on the Anglo Indian Community as a condition for receipt of the special grant other than that at least 40 per cent. of the annual admissions should be made available to non Anglo Indian pupils. The advice, tendered by the State to the Anglo Indian Schools by clause 7 of the impugned order, will, if the same be followed, necessarily impose an additional burden on the, Anglo Indian Schools to which they are not subjected by the Constitution itself. The covering circular No. SSN 2054(b), which was issued on the same day, throws out the covert hint of the possibility, in consequence of the impugned order, of some change becoming necessary in the existing procedure for the 588 equitable distribution of the total grant among AngloIndian Schools, although the impugned order was not intended to affect the total grant available for distribution to Anglo Indian Schools under the Constitution. If, in the light of the covering circular, clause 7 is to ,be treated as operative, in the sense that a noncompliance with it will entail loss of the whole or part of this grant as a result of the change ' in the existing procedure for the equitable distribution, then it undoubtedly adds to article 337 of the Constitution a further condition for the receipt by Anglo Indian Schools, of the special grant secured to them by that article. On the other hand if clause 7 is to be treated merely as advice, which may or may not be accepted or acted upon,then clause 5 will amount to An absolute prohibition against the admission of pupils who are not AngloIndians or citizens of non Asiatic descent into AngloIndian Schools and will compel the authorities of such Schools to commit a breach of their Constitutional obligation under article 337 and thereby forfeit their constitutional right to the special grants. In either view of the matter the impugned order cannot but be regarded as unconstitutional. In our opinion the second question raised in these appeals must also, in view of article 337, be answered against the State. The result of the foregoing discussion is that these appeals must be dismissed and we order accordingly. The State must pay the costs of the respondents. Appeals dismissed.

HELD: The faith of the people in administrative tribunals can be sustained only if the tribunals act fairly and dispose of the matters before them by well considered orders. Refusal to furnish relevant materials to the objectors can amount to denial of reasonable opportunity and violation of natural justice. [816 C & E]

Appeal No. 91 of 1954. Appeal from the judgment and decree dated December 10, 1948, of the Madras High Court in Regular First Appeal No. 609 of 1946, arising out of the judgment and decree dated March 30, 1946, of the Court of the Subordinate Judge of Chicacole in Original Suit No. 1 of 1943. A. V. Viswanatha Sastri and R. Ganapathy Iyer, for the appellant. K. M. Rajagopala Sastri and section K. Sastri, for respondents Nos. 1, 2, 3, 5 7, 13 and 24 27. October 6. The Judgment of the Court was delivered by SINHA J. The only question for determination in this appeal by the first defendant, on a certificate granted by the High Court of Madras, is whether the renewal of a lease for running a salt factory, granted by the Government in favour of the appellant and others (defendants 1 to 7), could be treated as an asset of the dissolved partnership between the contesting parties. The trial court decided this question in favour of the contesting defendants. On appeal by the plaintiffs and some defendants on the side of the plaintiffs, the High Court of Madras determined this controversy in favour of those appellants. Hence, this appeal by the first defendant whose interest is identical with that of defendants 2 to 7. The reference in this judgment to I appellant ' will, thus, include the interest of the other non appealing defendants also. The relevant facts of this case, upon which the appeal depends, may shortly be stated as follows: The contesting parties used to carry on the business of salt manufacture in accordance with the rules laid down by the Government under the Madras Salt Act 76 (Mad. 4 of 1889) (which will, hereinafter, be referred to as the Act). It is not permissible to manufacture salt otherwise than tinder the provisions of the Act. The land and the factory where salt used to be manufactured by the parties, are Government property. It appears that the first plaintiff, the father of plaintiffs 2 to 4, plaintiff 5, the first defendant and the deceased father of defendants 2 to 7, had made bids for the lease of the land and the factory, and the highest bid of the defendants aforesaid, was accepted; and in pursuance thereof, a lease for 17 years from January 1926, to December, 1942, was granted by the Government in favour of the first defendant and the father of defendants 2 to 7. 'By a deed of partnership dated March 18, 1926, the first plaintiff with a two anna share, the father of plaintiffs 2 to 4, having a similar share, and plaintiff 5 with another two anna share, on the one hand, and the first defendant, having a five anna share, and the father of defendants 2 to 7, with the remaining five anna share, entered into a partnership for running the salt factory. The terms of the partnership will have to be discussed in detail hereinafter. They contributed a sum of Rs. 30,000 for paying the premium for the lease and for other incidental expenses in running the factory, in proportion to the shares just indicated. The father of defendants 2 to 7, who had a five anna share in the business, died in August, 1935, and the defendants 2 to 7 were admitted as partners in place of their father. In accordance with the rules of the salt department, the requisite licence for the manufacture of salt, was granted to the first defendant and the father of the defendants 2 to 7, in, whose name, the lease also stood. In or about the year 1939, differences arose between the parties, but the business continued to be carried on by the defendants 1 to 7. In August 1941, in accordance with the changed policy of the Government, which substituted the practice of settling salt leases by renewal of the lease in favour of those lease holders whose conduct had been satisfactory in the opinion of the Department, for the old practice of settling salt leases to highest bidders, the Collector enquired from the old 77 lease holders whose record had been satisfactory from the point of view of the salt department, whether they would take renewal for a period of 25 years. The appellant as also. the other defendants aforesaid, their conduct having been satisfactory, were amongst those lessees who had been 2invited to make applications for the renewal of their leases. Accordingly, they made their application in July, 1942, and a fresh lease for 25 years, was granted to them on April 15, 1943, for the period January, 1943 to December, 1967, in pursuance of the Collector 's order passed in November, 1942 (exhibit P 15(a)). The terms of the new lease will have to be discussed later in the course of this judg ment. As the term of the previous lease and of the licence to manufacture and sell salt which 'was the partnership business was to expire at the end of December, 1942, one of the contesting defendants, served a notice upon one of the plaintiffs to the effect that as. the partnership was expiring at the end of the month, the partners should settle their accounts, and make arrangements for the disposal of the unsold stock of 82102 maunds of salt. The reply to the notice was given on December 28, 1942, through an advocate, alleging inter alia that the application for the renewal of the lease for a period of 25 years had been made on behalf and with the consent of all the partners, and that, thus, the partnership business was agreed to be continued even after the expiry of the term of the previous partnership. The answer further attributed fraud and "evil intention " to the other party. The answer also called upon the defendants to pay a penalty of Rs. 2,500 per head, and to hand over the entire partnership lease property to the plaintiffs ' party. Thus, the exchange of the notices aforesaid was a prelude to the institution of the suit on January 5, 1943, that is to say, even before the fresh lease had been executed by the Government in favour of the contesting defendants 1 to 7. The suit was instituted on the footing that the original partnership continued even after December, 1942, inasmuch as the fresh lease had been obtained in pursuance of a unanimous resolution of all the partners 78 to obtain the new lease for the partnership business. But an alternative case also was sought to be made out that even if the partnership did not continue after December, 1942, as a result of. the acts of the defendants, the benefit of the fresh lease for 25 years should be treated as an asset of the dissolved partnership business, and should be taken into account in the process of dissolution of the partnership. The plaint as framed contained a large number of reliefs to which, the plaintiffs claimed, they were entitled, for example, a declaration that the partnership was continuing, and that the defendants 1 to 7 had forfeited their rights in the partnership as a result of their fraudulent acts, an injunction restraining defendants 1 to 7 from carrying on the salt works independently of the partnership and on their own account, and the declaration that the renewal of the lease in the name of the defendants 1 to 7, for a further period of 25 years, was for the benefit of the partnership. But at the trial, the plaintiffs, perhaps, realizing the weakness of their position, elected to put in a memorandum in the trial court on February 8, 1946, confining their prayers to reliefs on the basis of a dissolved partnership, and giving up other reliefs, which they claimed on the footing of the partnership still continuing. Thus, at the trial, the reliefs claimed were confined to taking accounts between the parties of the dissolved partnership, and treating the fresh lease for 25 years, as part of the assets of the dissolved firm. It is, therefore, not necessary to refer to the defendants ' written statement, except with reference to the plaintiffs ' claim to have the renewed lease for 25 years treated as an asset of the dissolved partnership. The contesting defendants 1 to 7 stoutly denied that the plaintiffs ' claim in respect of the fresh lease for 25 years, was well founded. They asserted that they only were entitled to run the business on the fresh lease and licence meant only for their benefit and not for the benefit of the dissolved partnership. The trial court passed a preliminary decree, declaring that the partnership stood dissolved on December 31, 1942, and for taking accounts. As regards the 79 benefit of the renewed lease for 25 years, the trial court negatived the plaintiffs ' claim that the dissolved partnership carried any firm or trade name, which(, could be said to have any tangible goodwill, and that the defendants could not be restrained from carrying on the business in their own names as they had been doing in the past. After expressing a doubt as to whether there was any goodwill of a particular firm name, the court directed that "the Commissioner is authorized to sell the goodwill of the old firm for what it is worth by way of realization of the assets of the dissolved firm as amongst the partners. " In effect, therefore, the trial court decided that the plaintiffs were not entitled to the benefit of the new lease. On appeal to the High Court, the learned Chief Justice, delivering the judgment of the Division Bench, came to the conclusion that the plaintiffs ' case that the fresh lease had been obtained as a result of the resolution of the partners to carry on the business after the lapse of the specific period of the partnership which came to an end in December 1942, had not been made out. But on the alternative plea of the plaintiffs, the Court, after an elaborate discussion of English and Indian Law on the subject, held that the plaintiffs were entitled to treat the new lease as an asset of the dissolved partnership. The conclusion of the High Court may better be stated in its own words, as follows: "In conclusion, we hold that the new lease obtained by Defendants 1 to 7 in renewal of the old lease which formed the subject matter of the partnership, must be held by them for the benefit of the other members of the partnership, who are entitled to share in the advantage gained by Defendants 1 to 7. As the lease itself was executed after the termination of the partnership and as it is not the case of the Appellants that any one other than defendants 1 to 7 had furnished the consideration for the new lease, the benefit of the renewal alone 'will be treated as an asset of the partnership which terminated on 31st December, 1942, and a value placed on it. The Commissioner appointed 80 by the lower Court may, after taking such evidence as may be necessary, be directed to fix the value in the first instance. In arriving at a value, the liability of defendants 1 to 7 to furnish capital and incur the necessary expenses for carrying on the new business with its attendant risks and also possibilities of profits, are factors to be taken into account. " In those words, the High Court set aside the judgment and decree of the trial court, and allowed the appeal in terms which the Commissioner appointed to take accounts of the dissolved partnership, may not find it easy to implement. In support of this appeal, the learned counsel for the appellant, has contended that the High Court has misdirected itself in construing the provisions of the Indian Trusts Act, in holding that a constructive trust had been made out in favour of the plaintiffs; that there is no absolute rule that the renewal of a lease which was the subject matter of a partnership, must always enure to the benefit of the old partners; and that the essential ingredients of section 88 of the Trusts Act, had not been made out in this case. He also contended that the lease by itself, did not create a right to manufacture salt and to sell it, and that a licence is a necessary pre requisite to carry on the business of manufacture and sale of salt in accordance with the rules of the Department, and that it is open to the Department not to recognise any partners in the business. In this case, it was further contended, the licence to sell salt had been granted only in 1945. Under the English law, there may be a presumption that the renewal of a lease which formed the subject matter of a partnership, will enure for the benefit of the partners, but he contended that in the circumstances of this case, such a presumption could not arise, and even if it did, it was rebutted by the following facts. The term of the original partnership was a fixed one, terminating with the term of the lease and of the licence to manufacture salt, which came to an end with the year 1942; the partnership deed did not contemplate that this business would be extended beyond the fixed term in the event of a fresh lease 81 being obtained from the Government. It was highly significant that the term of the partnership to carry on the salt business was deliberately fixed as conterminous with the terms of the lease and the licence. The plaintiffs never took any steps to obtain a renewal of the lease, nor was there any evidence that they asked the defendants to take a renewal for the benefit of all the partners. On the other hand, when the defendants applied on their own behalf for a fresh lease for 25 years, the plaintiffs put in a petition of protest, and prayed to the Government for being included in the category of lessees in the lease to be granted for 25 years, as co lessees, but without any success. There is no allegation in the plaint of any attempt at concealment on the part of the appellants to the effect that they were taking the lease for their own benefit. Nor was there any evidence that the defendants had taken any advantage of their position as partners, or had utilized any funds of the partnership for obtaining the fresh lease. Lastly, it was contended that differences having cropped up between the parties during the years 1939 to 1942, it could not be said that the plaintiffs placed such a confidence in the defendants as to place them in the position of constructive trustees within the meaning of section 88 of the Trusts Act. On the other hand, it was contended on behalf of the respondents that the fresh lease for 25 years, was granted to the appellants as a result of the changed policy of the Government, by which they substituted the renewal to approved parties in place of the old practice of settling the terms of the lease by open competition and by holding auction sales. The contesting defendants obtained the lease in their names because they were entered in the Government records as the original lessees, and as the original lease was admittedly for the benefit of all the partners, the new lease also must be treated as being founded on the old lease. It was also contended that section 88 of the Trust Act, was not exhaustive, and that even if the present case did not come strictly within the terms of that 11 82 section, the rule of English law relating to constructive trusts, applied to the case, and that, therefore, the High Court was quite justified in coming to the conclusion that the lessees were in the position of trustees when they obtained the renewed lease. The plaintiffs failed in their attempt to be included in the category of joint lessees along with those defendants because of the changed policy and the rules of the Department. Hence, the plaintiffs were in a position of disadvantage as compared to the defendants in whose name, the original lease and the licence stood. In view of those facts, it was further contended, the plaintiffs could not either get the lease independently for themselves, or succeed in getting their names included in the category of joint lessees. Lastly, it was contended that in the circumstances of the present case, the presumption of law that the defendants were constructive trustees, had not been rebutted. Before dealing with the arguments advanced on be. half of the parties, it is convenient to set out, in brief outline, the system of working salt factories under the Act (Mad. 4 of 1889), which was enacted to " consolidate and amend the law relating to the salt revenue in the Presidency ". Under the Act, a " salt factory " includes any place used or intended to be used for the manufacture of salt or for the storage or keeping of the same, as defined from time to time by the Collector of salt revenue. " Licensee ", under the Act, means a person to whom a licence to manufacture salt or saltpeter, is issued, and includes any person registered as the transferee of such licence under the provisions of the Act. Under section 8, only licensees or public servants under the Central Government, are authorized to manufacture salt. Section 9 of the Act, authorizes the Collector of salt revenue to grant licences for the manufacture of salt in respect of specified salt works, containing such particulars and conditions as the Central Government may prescribe from time to time. Such a licence may be for the manufacture of salt for sale to the Central Government or for general sale; and may be transferred or relinquished in accordance with the prescribed rules. Section 12 lays down that? 83 a licensee shall be taken to be the owner of the licence and of the salt works specified therein. It is open to the Central Board of Revenue to establish a new salt, factory, and, subject to the payment of compensation, to close any salt factory or a portion thereof, and thus, cancel or amend the licence. A provision has also been made by section 17 for the grant of a temporary licence for the manufacture of salt in certain contingencies. Section 25 authorizes the Collector of salt revenue to impose upon a licensee a fine according to the prescribed scale, or to suspend a licence or even to cancel a licence for want of due diligence or default by a licensee. Section 43 contains a prohibition against the removal of salt from a salt factory otherwise than on account of the Central Government or for transport to a place of storage authorized by the Collector of salt revenue, except under a permit and upon payment of duty at the fixed rate. The Central Government is authorized to make rules generally for carrying out the provisions of the Act, and specially for regulating certain matters set out in section 85. Such rules, on publication in the official gazette, have the force of law, and have to be read as part of the Act. It is common ground that elaborate rules have been laid down by the Government, for regulating the manufacture and sale of salt, so as to safeguard public revenue and to prevent the manufacture of contraband salt. It is, thus, clear that the business of manufacture of salt, which the parties to the agreement of partnership carried on, was not an ordinary occupation, which, is free from such strict rules and regulation as have been laid down by and under the Act. The licensee owes a special responsibility to the Government, and, therefore, the transfer or relinquishment of licences under the Act, has to be regulated according to the rules laid down by the Government. It is true that there is no absolute prohibition against such transfer or relinquishment, but the Government through its public officers, has the determining voice in such matters. It is in the background of the law laid down by or under the Act, that we have to discuss the rights and 84 lease. The first lease, a draft copy of which is on the record as ex. P 16 at pp. 101 to 105, is an indenture between the Secretary of State for India in Council as the lessor, and the first defendant and the father of defendants 2 to 7, as the lessees. The consideration for the lease is the sum of Rs. 25,000/ . The lease is for a period of 17 years from January 1, 1926, subject to either party having the right to determine the lease by a notice in writing at the close of the salt manufacturing season. It provides that on the expiry of the lease or its sooner determination as aforesaid by notice on either side, the lessees shall leave the demised premises which had been leased out exclusively for the manufacture, storage and sale of salt and for the works connected therewith, without any right to erect any dwelling houses, etc. It also provides that the lessees shall be granted a modified excise licence in Form E 1(d). It also contains the condition that the lessees shall not, except with the written consent of the lessor, first had and obtained, assign, underlet, or part with the possession of the leased land or any portion thereof. The lessees may take a partner or partners, who may be approved by the Collector in the business. The lease also contains detailed provisions as to how the business of manufacture has to be carried on under the supervision of the public authorities like the Collector. The renewed lease, exh. D 18, dated April 15, 1943, is between His Excellency the Governor General in Council, as the lessor and the contesting defendants as the lessees, for a period of 25 years commencing from January 1, 1943. There is no payment of any premium for the lease. The other terms and conditions of the lease are similar to the previous one. Though temporary licences were granted from time to time, it was only on April 17, 1945, that a " revised permanent licence " was granted, and the temporary licence granted for 1945, was cancelled. The " co partnership deed " as it is called, which is dated March 18, 1926, is between five individuals, and provides that those five persons should enjoy the profit 85 or bear the loss thereof, according to the shares indicated above; " that as the licence in the salt stands in the names of Chennuru Appala Narasayya Chetty and Guruswamy Chetty out of us, the said individuals only shall be responsible thereto "; and that " In case the said Appala Narasayya Chetty and Guruswamy Chetty or their heirs fail to render proper accounts whenever demanded according to the aforesaid terms to the remaining three sharers or their heirs during the salt lease period of seventeen years and commit defaults or any kind of frauds, Appala Narasayya Chetty Garu and Guruswamy Chetty Garu shall pay by way of penalty to the said three sharers at the rate of Rs. 2,500/ (two thousand five hundred) per share for the year when fraud is committed, without having anything to do with the other profits and losses. " It is, thus, clear that the partnership was for the fixed term of 17 years, ending with the period of the lease, and the parties did not, in terms, contemplate the continuance of the partnership after the expiry of that period. Their rights and liabilities are entirely with reference to the said period of 17 years, there being no provision for the continuance of the business by the partnership after the expiry of the said term. If there bad been a specific stipulation in the partnership deed, or even an indication that the partnership business would continue even after the expiration of the 17 years, which was the term of the partnership, different considerations may have arisen. It could then have justly been said that the managing partner owed a duty to the other partners to obtain a renewal of the previous lease. It is, therefore, not without significance that in para. 12 of the plaint, the plaintiffs specifically alleged that it had been unanimously resolved by the partners that a renewal of the lease should be obtained for a further period for the benefit of the partnership, and that as a matter of fact, the renewal was obtained in pursuance of that resolution and by using the goodwill of the partnership. This specific case has failed in both the courts below, but the High Court, in disagreement with the trial court, has accepted the alternative case as made 'out, 86 in para. 17 of the plaint, that the renewal of the lease should be treated as an asset of the partnership in ,settling the accounts and dividing the assets of the dissolved partnership. But even in para. 17, there is no specific case made out under section 88 of the Indian Trusts Act (II of 1882). It is not alleged, in terms, that the contesting defendants filled a fiduciary character, and were, thus, bound to protect the interest.% of all the partners in obtaining the renewal of the lease, or that, in so doing, their interests were adverse to those of the other partners, and they had, this gained a pecuniary advantage to the detriment of the other partners. Though the plaintiffs had suggested that the contesting defendants had large funds, amounting to about Rs. 90,000, of the partnership, portion of which had been set apart for Payment of premium and for other expenses incidental to the renewal of the lease, it had been found, and there cannot be the least doubt about it, that no funds of the partnership had been utilized for obtaining the new lease. As already indicated, no premium had to be paid for the fresh lease obtained by the contesting defendants. Though no foundation was laid in the pleadings, strictly construed, for a case tinder section 88 of the Indian Trusts Act, we have still to examine the question ' whether the High Court was right in holding that either under that section or under the general law, apart from the statutory law, the contesting defendants bad placed themselves in such a position as to render themselves accountable as constructive trustees. Section 88 is in these terms: " 88. Where a trustee, executor, partner, agent, director of a company, legal adviser or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, ' or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other persons and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained. " 87 The section is in two parts. In order to bring the case within the first part, it has to be shown that the contesting defendants had a fiduciary character, and were thus, in duty bound to protect the interests of the other partners in the matter of obtaining the lease; and that they obtained the lease for themselves instead, by availing themselves of that character. As already pointed out, it was not within the scope of the partnership in accordance with the terms of the deed, to obtain a renewal of the lease. At the time of entering into the partnership, the parties were fully cognizant of the rules of the Department then in force, according to which a fresh lease could be granted to the highest bidder irrespective of any other con siderations as to whether any one of the bidders war, a previous lessee. The renewal of the lease without payment of any premium, was the result of the changed policy of the Government, according to which the personal conduct of the lessees, and not the amount of premium, was the determining factor in the grant of a fresh lease. Because the contesting defendants bad managed the factory well and to the satisfaction of the Revenue Authorities, they were able to obtain the fresh lease, and it cannot be said that they had availed themselves of their character as partners in obtaining the renewal of the lease. The plaintiffs ' allegation that the goodwill of the firm had been utilized for obtaining the renewal, has also not been found by the courts below to be true, because the basic allegation that there was a partnership firm with a goodwill, had not been established as a fact. In our opinion, therefore, the plaintiffs have failed to bring the case within the first part of section 88. We shall now examine the position whether the plaintiffs have made out a case in terms of the second part of the section. In order to do so, it bad to be shown that the contesting defendants, while obtaining renewal of the lease, had placed themselves in such a position as to render their interests adverse to those of the other partners, and had thereby obtained a pecuniary advantage, which they. must hold for the benefit 88 of the other partners as well. In this connection, illustrations (d) and (e) under the section, are instruc tive. If the plaintiffs had succeeded in proving, as they had attempted to do, that any funds or any goodwill of the alleged firm name, had been utilized for obtaining the renewal of the lease, the case would have directly come under illustration (d). illustration (e), on the face of it, does not apply, because on the findings, the defendants were not negotiating for the renewal of the lease on behalf of the entire body of partners, nor is there any allegation that they had clandestinely stipulated for themselves a benefit to the detriment of the partnership business or funds. In this connection, it has to be noted that the suit was instituted months before the renewed lease was actually granted, and years before a permanent licence for the manufacture and sale of salt, was issued to the contesting defendants. It has also to be noted that the grant of the lease by itself does confer on the grantee the right to manufacture and sell salt. The lease has to be followed by a permanent licence in order to enable the grantee to carry on the business of manufacturing, storing and selling salt. Hence, the lease by itself has no value unless it is followed by a licence to manufacture and sell salt, which was granted only on April 17, 1945, about two years and four months after the expiry of the previous lease and licence, which, as already indicated, were conterminous with the term of the partnership. That is the reason why the High Court granted the decree in favour of the plaintiffs in terms which are rather amorphous and which do not easily lend themselves to conversion in terms of money. This is a business in which the personal factor of the persons in charge of managing the business, is more important than anything else. Another important matter which has a bearing on the case, has also to be adverted to. Between the years 1939 and 1942, that is to say, during the last three years of the term of the partnership, the partners Were not on cordial terms, and there does not appear to have been much of confidence between them. The" had already started quarreling and attributing 89 unworthy motives. There is, therefore, hardly any room for importing the idea of such confidence amongst partners as would render the contesting(, defendants occupying a fiduciary position, apart from the fact that they were partners. As already indicated, the partnership stood automatically terminated at the end of the year 1942. The actual grant of the lease in question was made in April 1943, and the permanent licence to manufacture and sell salt, was granted only in 1945. Hence, strictly speaking, when the suit was instituted in January, 1943, legally, there was no lease in existence, nor could the business of manufacture and sale of salt be effectively carried on until the grant of the permanent licence. The plaintiffs could have a cause of action in respect of the renewed lease if their substantive case of continuing partnership had been established. But that case having failed, it is a little difficult to appre ciate how they could claim any interest in the renewed lease as an asset of the partnership business. The fiduciary character as between the partners had ceased on the termination of the original lease and of the partnership business. On such a termination, there was no interest of the partners, which the contesting defendants were bound to protect. For the same reasons, the defendants ' character as partners had ceased, and they could not, therefore, be said to have availed themselves of their character as partners in obtaining the fresh lease. For all these reasons, it must be held that the plaintiffs have failed to bring the case strictly within the terms of section 88 of the Indian Trusts Act. A passing reference was made by the learned counsel for the respondents to the terms of section 90 of the Trusts Act. But it will be noticed that whereas section 88, quoted above, makes a specific reference to partners and agents, etc., section 90, in terms, applies to a tenant for life, a co owner, a mortgagee, or any other qualified owner of any property. Section 90, therefore, in terms, could not apply to the case. Even if it did, it does not carry the case any further in favour of the plaintiff respondents. 12 90 that even though the provisions of the Trusts Act, did not, in terms, apply to the case, the general principles of law as applied in the English courts, support the plaintiffs ' case. In this connection, reliance was placed upon the cases of Featherstonhaugh vs Fenwick (1), Clegg vs Fishwick (2), Clements vs Hall (3), Clegg vs Edmondson (4), In re Biss, Biss vs Biss (5), Griffith vs Owen (6) . The law in England has been summarized in Halsbury 's Laws of England, 2nd Ed., Vol. 24 (Lord Hailsham 's Edition) in article 863 at p. 450, as follows: " The renewal of a lease of the partnership property by one or more of the partners without the privity of the others enures for the benefit of all. The rule is the same when the intention to renew is communicated to the others if the latter are prompt to assert their rights; and it is immaterial whether the term of the partnership is definite or indefinite, or whether the lessors would have refused to renew to the partners who are not privy to the renewal. The representatives of a deceased partner may have a right to share in the profits derived from a renewal of the lease by the surviving partner. " Most of the cases relied upon on behalf of the respondents, form the basis of the statement of the law in England, quoted above. On a close examination of the English precedents aforesaid, it will be found that there is no absolute rule of law or equity that a renewal of a lease by one partner, must necessarily enure for the benefit of all the partners. There is a presumption of fact, as distinguished from a presumption of law, that there is an equity in favour of the renewal of the lease enuring for the benefit of all the partners. But such a presumption being one of fact, is rebuttable, and must, therefore, depend upon the facts and circumstances of each case. The Indian Legislature has substantially adopted the English law quoted above, while enacting (1) ; (3) ; (5) (2) ; (4) ; (6) [1907] I. ch. 91 the rules laid down in the Indian Trusts Act, particularly, sections 88 and 90 of the Trusts Act. In the instant case, the facts that. the parties deliberately chose to fix the term of the partnership as conterminous with the term of the lease and licence ending with the year 1942; that they did not, in express terms, or by necessary implication, make any provision for extending the period of the partnership or for obtaining renewal of the lease and the necessary licence; that there was no averment or proof of any clandestine acts on the part of the contesting defendants in the matter of obtaining the renewal of the lease; that the plaintiffs themselves made attempts, though unsuccessful, to get themselves included in the category of grantees at the time of the renewal of the lease ; that the special nature of the business required personal efficiency and good conduct on the part of the actual managing agents; that no funds of the expiring partnership or any goodwill of the partnership was utilized for obtaining the fresh lease; that the fresh lease and licence were granted to the contesting defendants in consideration of their personal qualities of good management and good conduct; that the parties were not on the best of terms during the last few years of the partnership, and finally, that the lease and the permanent licence were actually granted after the partnership stood automatically dissolved at the end of 1942, are all facts and circumstances which point to only one conclusion, namely, that the renewal of the lease was not intended to be for the benefit of all the quondam partners. Those facts and circumstances amply rebut any presumption of fact that the lease should enure to the benefit of all the parties. For the reasons given above, it must be held that the judgment and decree passed by the High Court, in so far as they reverse those of the trial court, are erroneous, and must be set aside. The appeal is, accordingly, allowed with costs throughout, which are attributable to the single issue which has been decided in this Court. Appeal allowed.

The appellant gave the highest bid at the auction of an arrack shop but his bid was considered inadequate. The shop was re auctioned and the bid of 'C ' was provisionally ac cepted. 'C ' failed to comply with certain requirements and the shop was again re auctioned in which the bid offered was lower than that offered by the appellant in the original sale. The respondent sought recovery of the difference between the original sale amount and the resale amount from the appellant, under Rule 21 of the Tamil Nadu Toddy and Arrack Shops (Disposal in Auction) Rules, 1981. The appel lant challenged the recovery by filing a writ petition in the High Court which was dismissed by a Single Judge and the decision was confirmed by a Division Bench on appeal. In the appeal to this Court it was contended on behalf of the appellant that since his bid was not confirmed under the rules, no recovery can be made from him and that 'C ', whose bid was provisionally accepted, was liable for the notional loss. The respondent however contended that since 'C ' failed to comply with Rule 15, his bid was not provi sionally accepted and hence he was not liable for the re sultant loss. Allowing the appeal, this Court, HELD: 1. Normally it may be correct to say that the sale officer under Rule 16 accepts provisionally the bid after there is compliance of Rule 15; but in the instant case, the Court is concerned with the re auction and about the liabil ity of the original highest bidder in the light of Rule 20(4). [616D E] 610 2. In view of the document dated 19th June, 1981 it must be held that the bid of 'C ' was accepted provisionally by the Sale Officer and by virtue of Rule 20 sub Rule (4) when once the bid of 'C ' was accepted provisionally as the high est bid, the bid with which the sale began namely the bid of the appellant, got lapsed and consequently the appellant cannot be held liable for the resultant loss. [616C D]

peals from the judgments and decrees dated the 23rd February, 1945, of the High Court of Judicature at Calcutta (Akram and Blank JJ.) in Second Appeals Nos. 861 to 885 of 1939 from the judgments and decrees dated the 16th December, 1938, of the Court of the District Judge, Birbhum, in Title Appeals Nos. 23 to 47 of 1938. Sitaram Bannerjee (Arun Kumar Dutta and Amiya Kumar Mukherjee, with him) for the appellant in Civil Appeals Nos. 68 to 74 of 1951. Urukramdas Chakravarthy (section N. Mukherjee, with him) for the respondent No. 1 in Civil Appeals Nos. 68 to 74 of 1951. Sitaram Bannerjee (Arun Kumar Dutta and Amiya Kurnar Mukherjea, with him) for the appellant in Civil Appeals Nos. 75 to 92 of 1951. Panchanan Ghose (Chadra Nath Mukherji, with him) for the respondents Nos. 1 to 3 in Civil Appeals No. 75 to 92 of 1951. April 2. The Judgment of the Court was delivered by MAHAJAN J. These appeals are directed against the judgment and decrees of the High Court of Judicature at Calcutta, dated 23rd February, 1945, reversing the judgment and decrees passed by the District Judge of Birbhum dated 16th December, 1938. The principal questions for determina tion are the same in 102 784 all of them and can be conveniently disposed of by one judgment. It is necessary to set out briefly the history of this half a century old litigation I The seven suits out of which arise Appeals Nos. 68 to 74 were filed in September, 1904, by Maharaja Bahadur Singh in the court of the differ ent Munsifs at Rampurhat, against Raja Ranjit Singh Bahadur, deceased, and others, for a declaration of his title to the lands mentioned in the different suits and for mesne profits from the year 1899 till recovery of possession. It was alleged that the lands in the several suits were chowkidari chakran lands within the plaintiff 's patnidari, granted to his predecessors in interest on 14th November, 1853, by the ancestors of the defendant, that as the lands were in the possession of village watchmen on service tenures, they were excluded from assessment of land revenue and no rent was paid on them, that in the year 1899 under the provisions of sections 50 and 51 of Bengal Act VI of 1870 Government resumed the lands, terminated the service tenures and settled them with the zamindar, that in this situation the plaintiff as patnidar became entitled to their actual physi cal possession, that the zamindar wrongfully took physical possession of them and denied the right of the plaintiff and hence he was entitled to the reliefs claimed. The suits were decreed on 17th August, 1905, and 19th August, 1905, by the two courts respectively and the decisions were affirmed on appeal by the District Judge. On special appeal to the High Court, the suits were remanded for trial on the ques tion of limitation, and after remand they were dismissed by the trial court and the Court of appeal as barred by limita tion. On second appeal, it was held that the suits were within limitation and were then decreed for the second time. This decision was affirmed on appeal to His Majesty in Council. The plaintiff actually obtained possession of the lands involved in these suits in August, 1913. An applica tion was made for ascertainment of mesne profits on 785 6th November, 1918. This was resisted by the defendant and it was pleaded that the plaintiff was not entitled to inter est on mesne profits, that the zamindar was entitled to receive the profits of the disputed lands and that deduc tion should be made out of the amount of the mesne profits on account of munafa and the amount of chowkidari dues as well as cesses due to him or paid by him. Five years later, on 24th June, 1927, another set of objections was filed by the zamindar claiming deduction out of mesne profits by way of equitable set off of the payments made by him subsequent to the date of delivery possession as well as for the amount of munafa that became payable to him after that date. After a prolonged enquiry the trial court on 18th December, 1937, decreed the plaintiff 's claim for mesne profits after allow ing the zamindar the deductions claimed by him up to the date of assessment of mesne profits but disallowed the amount claimed by way of equitable set off for the subse quent period. The learned District Judge on appeal reversed this decision and allowed the defendant the amount claimed by him by way of equitable set off, subject, however, to the condition that the dues of the defendant should be deducted from the dues of the plaintiff till the defendant 's dues were wiped off. The relevant part of his judgment runs thus : "The broad fact is that they (plaintiffs) have been in possession of the lands since 1910 and have been in enjoy ment of rent from the tenants from that date and according to law they are not entitled to possess the land uncondi tionally. Now that all the facts are before the court and the time has come for final adjustment of accounts between the parties the court should try to do substantial justice between the parties. It is not sufficient answer to say that the plea of equitable set off was not raised in the beginning. The circumstances in all these cases are pecul iar and it could hardly be expected that such plea would have been taken in the very beginning. The course of liti gation in these cases has not run along 786 easy and smooth channels: on the contrary its course has been extremely tortuous and disturbed frequently by con flicting decisions. No one could have reason ably antici pated in the beginning that the litigation would be pro tracted in this extraordinary way. It is the duty of the court to take notice of the subsequent events in order to do justice between the parties . As we are dealing with the question of equitable set off, no question of time barred debts or unascertained sum can arise . The plea of equitable set off in respect of time barred debts can be set up as a shield by way of defence nor can any question of payment of court fees arise. There is, in my opinion, no substantial difference in the character of the respective parties during the entire period and it would be futile to make an attempt at distinction by oversubtle argument where there is really no difference in substance. There is considerable force in the argument advanced on the side of the appellant, namely, the appellant 's claim to the equitable set off is really in the nature of cross demand arising out of the same transaction and connected in its nature and circumstances . From whatever standpoint the matter may be looked at I am of the opinion that the claim of the appellant for equitable set off for the subsequent period by way of deduction of the chowkidari revenue and cess paid by him as well as on account of munafa should be allowed. This amount will also carry interest at 6 per cent per annum up to date. The subsequent period means the period since the date of delivery of possession up to 1927 28. " Against the judgment and decrees of the District Judge the plaintiff preferred appeals to the High Court at Calcut ta. The High Court by the judgment under appeal modified the decrees of the District Judge and disallowed the claim for equitable set off in its entirety for the subsequent period and restored the decree of the trial court. The zamindar filed applications for leave to appeal to His Majesty in Council. These applications were consolidated with similar applications filed in the second batch of suits. A certifi cate 787 was granted for leave to appeal to His Majesty in Council. By an order dated 9th June, 1947, all the appeals were admitted and it was directed that the proceedings be printed and. transmitted to England. During the pendency of the proceedings in the High Court, Raja Bhupendra Narayan Singh died and the present appellant was impleaded as his heir and representative. An application was also made in the High Court for permission to urge additional grounds not already taken. After the abolition of the jurisdiction of the Privy Council these appeals were transmitted to this Court. An application under Order XIX, rule 4, of the Supreme Court Rules was presented at the hearing of the appeals that the appellant be allowed to urge the following additional grounds in support of the appeals, viz. : (1) That the munafa (rent) should not be calculated on the basis of the principles laid down in Radhacharan vs Maharaja Ranjit Singh(1). (2) That the said munafa should have been assessed on a fair share of the profits from the land. The second batch of appeals (Nos. 75 to 92 of 1951) arises out of 18 suits instituted in the court of the Munsif of Rampurhat on 22nd December, 1909, by Ganpat Singh and Narpat Singh, predecessors in interest of respondents 1 to 3 against the predecessor in interest of the appellant, late Raja Ranjit Singh Bahadur, and also some other persons who were tenants under him, for a declaration of the plaintiffs ' title to the resumed chowkidari chakran lands and for khas possession of the same and for mesne profits. The allega tions in these suits were the same as in the first set of suits. The defence to the suits was also the same. The suits were decreed by the trial Judge on 30th September, 1910, in the following terms : "The plaintiffs ' title is declared to the lands in suit and they will get khas possession of the same by ejecting the tenant defendants; on condition of paying (1) 788 to the defendant No. 1 an additional rent, to be deter mined on the principle that the original patni rent should bear the same ratio to the patni rent now payable by the plaintiffs as the original Hustbood at the time of the creation of the patni should bear to the present increased Hustbood, or any other fair and equitable rent which may be determined at the time of assessing the mesne profits. The plaintiffs will get Wasilat from defendant No. 1 up to the date of delivery of possession of the land in suit to them. The amount will be determined in a separate enquiry." The District Judge on appeal remanded the cases for determination of the conditions and terms under which the patnidar was to hold the lands under the zamindar and directed ascertainment of profits. The plaintiffs ob tained delivery of possession of the lands in the mean while on 23rd November, 1910. Against the remand order appeals were preferred to the High Court and the High Court decreed the appeals in these terms : "We set aside the portion of the decision of the Dis trict Judge which remands the cases to the original court to determine the conditions under which the patnidar is to hold the lands under the zamindar. Rest of the remand order will stand. That portion of the Munsif 's decree, which imposes on the appellant, as a condition of obtain ing khas possession, the payment of additional rent to the zamindar will be set aside. " Against these decrees appeals were preferred to His Majesty in Council by special leave. The Privy Council set aside the decrees of the High Court and observed as follows : "Their Lordships, therefore, see no reason for inter fering with the long series of authorities commencing as far back as the year 1900, which have established the right of the zamindar to have an additional rent fixed for such lands nor can their Lordships overlook the fact that in the cases already referred before this Board no exception was taken by the patnidar to the 789 fixing of such rents as a condition of being put into pos session. " On 8th December, 1922, the plaintiffs filed applications in these suits for ascertainment of mesne profits for the years 1906 to 1910. Objections were taken on behalf of the defendant on the 17th April, 1923, and it was contended that the plaintiffs may be allowed mesne profits to the extent of the amount that would be found due after deduction of the amount of rent to which the defendant was entitled in re spect of the lands in suit according to the judgment of the munsif. On the 28th May, 1927, another application was filed by the zamindar claiming deduction by way of equitable set off of the amounts due to him for rent from 1910 onwards and on account of subsequent payment made by him towards revenue and cesses. After a prolonged enquiry the munsif ultimately on the 18th December, 1937, decreed the plaintiff 's claim for mesne profits after allowing deduc tions for the amounts claimed by the defendant up to the date of delivery of possession. He held that the appellant was not entitled to get any amount by way of equitable set off in respect of sums of money spent by him in payment of revenue and cesses or for the amount of munafa or profits for the period subsequent to the date of delivery of posses sion. The District Judge on appeal by his judgment dated the 16th December, 1938, allowed the claim of equitable set off for the period subsequent to delivery of possession and directed that "from the plaintiffs dues, the dues of the defendant are to be deducted and if after these deduc tions any sum is due to the plaintiffs they will get a decree for that sum. If it is found on calculations in some cases that the dues of the defendant exceed the dues of the plaintiffs, in such cases the prayer of the plaintiffs for mesne profits must be dismissed. " Against this decision special appeals were preferred to the High Court and by the judgment under appeal the decision of the trial court was restored. Applications were then made for leave to appeal to His Majesty in Council and 790 those were allowed and a certificate was granted for pre ferring those appeals. Because of the abolition of the jurisdiction of the Privy Council those appeals are now before us for decision. The points for decision in all these appeals are the following : 1. Whether the appellant is entitled to deduct by way of equitable set off from the amount of mesne profits the amounts due to him on account of rent, revenue and cesses for the period subsequent to the dates of delivery of pos session. Whether interest should be allowed on the amount of mesne profits found due, and if so, at what rate. Whether the rent due to the appellant from the patnidar on those funds should be calculated on the basis of annual assets of the land (as in Radhacharan vs Maharaja Ranjit Singh (1), or on a fair and equitable basis. The claim for set off for the period for which mesne profits were claimed has been allowed and is not in these appeals. As regards the amounts due to the appellant by way of rent subsequent to the date of transfer of possession, the claim is unconnected with the subjectmatter of the different suits. It seems clear that a plea in the nature of equita ble set off is not available when the cross demands do not arise out of the same transaction. Mesne profits due to the plaintiff relate to the period during which the appellant was in wrongful possession of the lands and the amounts claimed by the defendant relate tO a period when he was no longer in possession and had ceased to be a trespasser. No mesne profits are claimable for that period. The right of the appellant to recover additional rents from the plaintiff arises out of a different cause of action and independently of the claim for mesne profits. If the patnidar after having entered into possession had defaulted in the payment of the (1) (1918)27 C.L J. 532, 791 additional rents due for any period, nothing stood in the way of the appellant from recovering the. in by appropriate legal proceedings. The prolongation of the enquiry for ascertainment of the mesne profits cannot support a claim for equitable set off for the period subsequent to the delivery of possession to the plaintiff. It is obvious that no claim for equitable set off against mesne profits during the pendency of the suits could be made for the sums deduction of which is now sought, as the amounts had not then accrued due and his right to them had not yet arisen. The learned District Judge was in error in holding that the appellant 's claim for equitable set off was in the nature of a cross demand arising out of the same transaction and connected in its nature and circumstances. He failed to appreciate that the transaction which led to plaintiff 's demand resulted from the defendant 's wrongful act as a trespasser, while the transaction giving rise to the appellant 's demand arises out of the relationship of landlord and tenant and the obligations resulting therefrom. A wrongdoer who has wrongfully withheld moneys belonging to another cannot invoke any principles of equity in his favour and seek to deduct therefrom the amounts that during this period have fallen due to him. There is nothing improper or unjust in telling the wrongdoer to undo his wrong, and not to take advantage of it. Such a person cannot be helped on any principles of equity to recover amounts for the recovery of which he could have taken action in due course of law and which for some unexplained reason he failed to take and which claim may have by now become barred by limitation. It was contended that it was only after the decree of the Privy Council that the appellant 's rights to the addi tional rent was finally established and till then no legal steps could be taken to enforce this demand. The contention is without force. The appellant 's right to additional rent had been established by the decree of the trial court in execution of which possession passed from him to the patni dar. The Privy 103 792 Council only affirmed this.decision. The patnidars under the decree were entitled to possession of the lands conditional on payment of the additional rent due for the period they had been out of possession. That condition having been fulfilled (by adjustment of the appellant 's claim against the mesne profits), the decree must be held to have been satisfied, thus completely settling the cross demands. The landlord 's demand for subsequent rents has to be enforced in the ordinary way in the civil court if any default has been committed in the payment of these rents. This claim cannot for ever remain linked with the demand for mesne profits for any anterior period. The result is that the decision of the High Court on this point is maintained. On the question of future interest payable on the decretal amount, the learned District Judge observed as follows : "I may state, however, at this stage that if I were to rule out the fact that I am allowing the claim of the appel lant for equitable set off, I would have allowed interest to the plaintiffs at the uniform rate of 4 per cent. per annum throughout, i.e., from the beginning of the Washilat period up to date. As I am allowing the prayer for equitable set off, I am of opinion, however, that interest at the usual rate at 6 per cent. per annum should be granted for the whole of this period. " The High Court disallowed equitable set off but yet maintained this decision. When the claim for equitable set off is being disallowed, there is no justification for allowing future interest at the rate of more than four per cent. for such a long period, particularly in a case where the plaintiff himself has not been prompt in getting, the amount of mesne profits ascertained. The plaintiff did not even ask for an enquiry into this question for a period of about twelve years. Taking into consideration all the circumstances of the case we think that future interest should not have been allowed to the plaintiff in the several suits at a higher rate than four per cent. on the amount decreed in the various Suits by way of mesne profits. 793 The appellant 's last contention that the munafa (rent) should not be calculated on the principle laid down in Radhacharan vs Maharaja Ranjit Singh (1) but should have been assessed on a fair share of the profits of the land has no substance because the claim was not made in the grounds of appeal to the Privy Council and was not even mentioned in the additional grounds of appeal. It was for the first time made before us at the hearing and we see no valid grounds for entertaining it at this late stage. Moreover, it seems to us that the claim has no substance in the absence of any evidence about the proportion the original patni rent bore to the revenue and cesses. For the reasons given above all these appeals fail except to the extent that the decree of the High Court is modified in that the amounts decreed by way of mesne profits in the various suits will bear interest at the rate of four per cent. instead of six per cent. The parties will bear their own costs in all these appeals. Appeals dismissed. Agent for the appellant in Civil Appeals No. 62 to 74 and 75 to 92: P.K. Bose. Agent for respondent No. 1 in Civil Appeals Nos. 68 to 74: Ganpat Rai. Agent for the respondents Nos. 1 to 3 in Civil Appeals Nos. 75 to 92: Sukumar Ghose.

Where a patnidar has obtained a decree against his zemindar for possession of resumed chaukidari chakran lands with mesne profits from the date on which the zemindar wrongfully took 783 possession of them, the zemindar is not entitled to deduct by way of equitable set off from the amount of mesne profits payable by him under the decree, the amounts due to him on account of rent, revenue and cesses for a period subsequent to the date of delivery of possession of the lands inasmuch as the two cross demands do not arise out of the same trans action. The transaction which led to the plaintiff 's demand for mesne profits resulted from the defendant 's wrongful act as trespasser, while the transaction which gave rise to the zemindar 's demand arose out of the relationship of landlord and tenant and the obligations resulting therefrom.

Civil Appeal No. 582 of 1971. Appeal by Special Leave from the Judgment and order dated the 29th July 1970 of the Punjab & Haryana High Court in Civil Writ No. 2376170 and 511 CIVIL APPEAL No. 1418 of 1970. From the Judgment order dated 4th December 1969 of the Punjab and Haryana High Court in C.W.No. 342 of 1969. Tirath Singh Munjral, G. K. Arora, B. C. Das Gupta & Co. for the Appellant. N. section Das Behl and o. P. Sharma for the respondent. The Judgment of the Court was delivered by JASWANT SINGH, J. There two Civil Appeals Nos. 1418 of 1970 and 582 of 1971, the first by certificate of fitness granted under Article 133(1)(a) of the Constitution by the Punjab and Haryana High Court and the second by special leave granted by this Court which are directed against the Judgments and orders of the said High Court dated December 4, 1969, and July 29, 1970, rendered in Civil Writ r Petitions No. 342 of 1969 and No. 2376 of 1970 respectively shall be disposed of by this Judgment as they arise out of identical proceedings and raise common questions of law. The appellant, a public limited company incorporated under the Indian Companies Act, which carried on the business inter alia of manufacture, storage and sale of various kinds of Indian made foreign liquors and had its plants for manufacture and production of beer and distillation and production of the said liquors at Solan (in Himachal Pradesh), at Mohan Nagar (in Uttar Pradesh), at Lucknow (in Uttar Pradesh) and at Kasauli (in Himachal Pradesh) held in the years 1967, 1968 and 1969 a licence in From B.W.H. 2 under section 22 of the Punjab Excise Act (1 of 1914) (hereinafter referred to as 'the Act ') read with Rule 2 of the Punjab Bonded Warehouse Rules, 1957 (herein after referred to as 'the 1957 Rules ') which were framed by the Financial Commissioner under section 59 read with section 22 of the Act, permitting it to run on conditions specified therein a Bonded Warehouse at Chandigarh for storage of bottled and bulk liquor and issue thereof under bond or on payment of duty to the licensees of Punjab, Haryana, Himachal Pradesh etc. One of these conditions required the appellant to observe the provisions of the Act as also the Rules framed and instructions issued thereunder from time to time. Rules 7 to 10 of 1957 Rules governing the appellant 's licence ran thus: "7. No liquor shall be received in the bonded warehouse unless accompanied by a pass from the offlcer in charge of the distiller or bonded warehouse from which it has been imported or transported. Immediately on arrival of a consignment at the bonded warehouse the officer in charge shall be informed and the consignment shall not be opened until the same has been examined and verified with the pass by the officer in charge who shall also note the results in the register maintained for the purpose and also on the pass covering the consign 512 ment. One copy of the pass with entries of receipt shall be immediately returned to the officer, who issued the pass ; the other copy with entries thereon. shall he kept in the. Warehouse. 8 A wastage allowance not exceeding 1 per cent shall be made for the actual loss in transit by leakage or breakage of vessels or bottles containing liquor. The allowance shall be determined by deducting from the quantity despatched the quantity received at the destination, both quantities being that in terms of proof liters of spirit contents or in case of beer bulk liters. 9 If the report of the officer in charge shows that the wastage exceeds the prescribed limit, the licensee shall be liable to pay duty at the prescribed rate as if the wastage in excess of the prescribed limit had actually been removed from the Warehouse. Provided that each case of excessive wastage shall be re ported to the Financial Commissioner for orders who may in his discretion, on good cause being shown remit it whole or a . part or the duty leviable on such wastage. 10 Liquor shall be imported/transported under bond in accordance with the Punjab Liquor permit and Pass Rules at the sole risk and responsibility of the licensee. The bond in form L. 37 shall be discharged, after liquor been duly checked and proved by the officer in charge and deposited in the Ware house." Between Junc. 1967 and April, 1969, the appellant transported. for the purpose of bottling, various quantities of Indian made foreign liquors from its aforesaid distilleries in Uttar Pradesh and Himachal Pradesh to it Bonded Warehouse at Chandigarh. This was done on the strength of the permits issued by the Excise and Taxation officer, Chandigarh. Pursuant to Rule 7 of the 1957 Rules, the officer in charge of the Warehouse examined the consignments on their arrival at their destination with a view to checking and verifying the quantities thereof with those shown in the permits and discovered that they suffered from shortage which exceeded the wastage allowance of 1 per cent permissible under Rule 8 of the said Rules. As a sequel to the detection of the aforesaid shortages. the Excise and Taxation Commissioner exercising the powers of Financial Com missioner, Chandigarh Administration, who is the first respondent here in, issued notices calling upon the appellant to show Cause why duty at the prescribed rate of Rs. 20/ per proof litre be not levied against it on the wastage in excess of the prescribed limit "as if the same had been removed from its Bonded Warehouse at Chandigarh. " In the written representation submitted on behalf of the appellant in reply to the notices, it was pleaded that the liquor evaporated during transit: that 513 the Bonded Warehouse was in its initial stage and the method of measurement of spirit was crude; that at the time of measurement, the temperature of spirit was not taken and that apart from evaporation, wastage occurred by leakage of drums in transit. By his detailed orders dated January 10, 1969 and February 10, 1970, the said respondent repelled all the pleas raised on behalf of the appellant and made the ' notices absolute holding that there was no material on the record to show that anything peculiar had taken place in respect of the consignments in question which entitled the appellant to any remission in the duty leviable on the wastage. The appellant thereupon preferred to the High Court writ petitions Nos. 342 of 1969 and 2376 of 1970 under Articles 226 and 227 of the Constitution challenging the aforesaid orders on various grounds. While the first writ petition was dismissed by the High Court by an elaborate Judgment and order dated December 4, 1969, the second one was dismissed in limine vide order dated July 29, 1970. While the High Court granted, as already indicated, a certificate of fitness for appeal to this Court against its Judgment and order dated December 4, 1969, it refused to so in respect of its order dated July 29, 1970. Though several contentions were raised by the appellant in the aforesaid two writ petitions filed by it in the High Court, counsel appearing on its behalf has assailed before us the correctness of the impugned orders passed by the first respondent on two grounds. He has in the first instance contended that Rules 8 and 9 of the 1957 Rules under which the duty is sought to be imposed are ultra vires the rule making power of the Financial Commissioner. Elaborating this submission, counsel has urged that since the state alone has, by virtue of election 31 of the Act, the power to impose duties mentioned therein, as also the exclusive power under section 58(1) of the Act to make rules for the purpose of carrying out the provisions of the Act including those of section 31 or any other law for the time being in force relating to excise revenue and section 13(a) of the Act prohibits the state Government to delegate the powers conferred on it by sections 14, 21, 31, 56 and 58 of the Act, Rules 8 and 9 of the 1957 Rules are manifestly beyond the competence of the Financial Commissioner. This contention cannot, in our opinion be accepted as it proceeds on a misconception of the correct legal position. It is, no doubt, true that it is the state Government alone which is empowered tn impose excise duty or countervailing duty on any excisable article and to prescribe rates thereof as also the make rules for carrying out inter alia the purposes of section 31 of the Act. but it seems to be overlooked that the impugned rules do not impose any one of the aforesaid duties or prescribe the rates thereof or create any liability in respect thereof. They are in essence and substance of a regulatory character meant to guard against perpetration of fraud or deception on the Revenue. They provide for and regulate the storage of liquor ill the Bonded Warehouse without payment at the initial stage of the duty payable under the Act and subsequently the removal of the liquor from the Warehouse on payment or otherwise of the duty which. as correctly pointed out by the High Court, is chargeable under the Fiscal Rule of 1937 issued by the state Government. The powers exercised 35 833 SCI/76 514 by the Financial Commissioner were clearly available to him under sections 59 and 22 of the Act and he has not, in our opinion, overstepped the same. The first contention raised on behalf of appellant is, therefore, overruled. It is next contended by counsel for the appellant that Rules 8 and 9 of the 1957 Rules are also invalid as they go beyond the scope of sections 16, 23 and 31 and Entry Sl of List ll of the Seventh Schedule to the Constitution. Dwelling on this contention, counsel has submitted that as the taxing power of even the State Legislature is restricted to the imposition of excise duty or countervailing city on an excisable article which, according to section 3(6) of the Act, means inter alia an alcoholic liquor for human consumption implying thereby an alcoholic liquor in existence, the incorporation in Rule 9 of the 1957 Rules of the fiction making the licensee liable to pay duty at the prescribed rate on wastage in excess of permissible limit as if the said wastage had actually been removed from the Warehouse has the effect of imposing duty on an article which neither existed in the State nor was removed from the Bonded Warehouse thus violating the scope and extent of the taxing power. , For a proper appreciation of the true legal position, it is necessary to advert to sections 3(6 b), 31, 32, 16 and 23 of the Act and Entry Sl of List II of the Seventh Schedule to the Constitution and the connotation of the term 'countervailing duty. ' "Section 3 (6 b) . 'excise duty ' and 'countervaling duty ' mean any such excise duty or countervailing duty as the case may be, as is mentioned in Entry Sl of List II in the Seventh Schedule to the Constitution. Section 31. Duty on excisable articles. An excise duty, or a countervailing duty, as the case may be at such rate or rates as the State Government shall direct, may be imposed, either generally or for any special local area, on any excisable article (a) imported, exported or transported m accordance with the provisions of section 16, or (b) manufactured or cultivated under any licence granted under section 20. Or (c) manufactured in any distillery established or any distillery or brewery licensed under section 21; "Provided follows: (i) Duty shall not be so imposed on any article which has been imported into India and was liable on importation to duty under the India Tarrif Act, 1894, or the . (ii) xx xx xx xx xx xx Explanation. Duty may be imposed under this section at different rates according to the places to which 515 any excisable article is to be removed for consumption, A or according to the varying strength and quality of such article "Section 32. Manner in which duty may be levied. subject to such rules regulating the time, place and manner as the Financial Commissioner may prescribe, such duty shall be levied rateably, on the quantity of excisable article imported, exported, transported, collected or manufactured in, or issued from, a distillery, brewery or warehouse; Provided that duty may be levied (a) on intoxicating drugs by an acreage rate levied on the cultivation of the hemp plant, or by a rate charged on the quantity collected; (b) on spirit or beer manufactured in any distillery established, or any distillery or brewery licensed, under this Act in accordance with such scale of equivalents calculated on the quantity of materials used, or by the degree of attenuation of the wash or wort, as the case may be, as the state Government may prescribe; (c) on tari, by a tax on each tree from which the tari is drawn: Provided further that, where payment is made upon issue of an excisable article for sale from a warehouse established or licensed under section 22(a), it shall be made (a) if the state Government by notification so directs, at the rate of duty which was in force at the date of import of that article or (b) in the absence of such direction by the state Government, at the rate of duty which is in force on that article on the date when it is issued from a ware house. * "Section 16. Import, export and transport of intoxicants No intoxicant shall be imported, exported or transported . 1. except (a) after payment of any duty to which it may be liable under this Act, or execution of a bond for such payment, and (b) in compliance with such conditions as the state 1. Government may impose." "Section 23. Removal of intoxicant from distillery no intoxicant shall be removed from any distillery, brewery, 516 warehouse or other place of storage established or licensed under this Act, unless the duty, if, any, payable under Chapter V has been paid or a bond has been executed for the payment thereof. "Entry 51 of List the of the Seventh Schedule to the Constitution Duties on excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India: (a) alcoholic liquors for human consumption (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub para graph (b) of this Entry." The expression 'countervailing duty ' is not defined in the Act but its meaning has been made clear in the Judgment the this Court in Kalyani Stores vs The State of Orissa and or.(1) where it was observed _ "This bring the consideration of the meaning of the expression "countervailing duties" used in Entry 51. List II of the Seventh Schedule to the Constitution. The "expression "countervailing duties" has not been defined in . the Constitution or the Bihar & Orissa Act 2 of 1915. We have, therefore, to depend upon its etymological sense and the context in which it has been used in Entry 51. In its etymological sense, it means to counterbalance; to avail against with equal force or virtue; to compensate for some thing or serve as an equivalent of or substitute for: sec Black 's live Dictionary, 4th Edn. This would suggest that a countervailing duty is imposed for the purpose of countervailing or to avail against something with equal force or to compensate for something as an equivalent. Entry in List II of the Seventh Schedule to the Constitution gives power to the State Legislature to impose duties of excise on alcoholic liquors for human consumption where the goods are manufactured of produced in the State. It also gives power to levy countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India. The fact that countervailing duties may be imposed at the same or lower rates suggests that they are meant for counterbalance the duties of excise imposed on goods manufactured in the State. They may be imposed at the same rate as excise duties or at a lower rate, presumably to equalise the burden after taking into account the cost of transport from the place of manufacture of the taxing (1) ; 517 State. It seems, therefore, that countervailing duties are ment to equalise the burden on alcoholic liquors manufactured or produced in the State. If no alcoholic liquors similar to those imported into the state are produced or manufactured, the right to impose counterbalancing duties of excise levied on the goods manufactured in the state will not arise. It may, therefore, be accepted that countervailing duties can only be levied is similar goods are actually produced or manufactured in the state on which excise duties are being levied. " lt will be seen that section 31 of the Act read with Entry 51 of` List II of the Seventh Schedule to the Constitution permits imposition of (i) excise duty by the state Government on any exisable article imported into or exported from or transported ill accordance with the provisions of section 16 of the Act which means after payment of any duty to which it may be liable under the Act or after execution of a bond for such payment and (ii) countervailing duty inter alia on Alcoholic liquors for human consumption manufactured or produced elsewhere in India. The contention advanced on behalf of appellant which seems to proceed on the assumption that the Chandigarh Administration cant impose duty only if liquor is consumed in its territory is erroneous as, according to section 31 of the Act read with the aforesaid Entry 51 of List of the Seventh Schedule to the Constitution, countervailing duty can be imposed on liquor meant for consumption which is manufactured or produced elsewhere in India. It is immaterial whether the liquor for which permits were obtained was consumed within the Union Territory of Chandigarh or was in existence in that territory or not. What is material is whether permits were obtained for import from Uttar Pradesh of alcoholic Liquor meant for human consumption and the quantity showing in the permits left Uttar Pradesh. In the present case, the liquor for which permits were obtained by the appellant was admittedly in existence and was meant for human consumption and did leave the appellant 's distilleries in Uttar Pradesh for being transported to his Warehouse in Chandigarh at his own risk and responsibility. It is also not denied on behalf of the appellant that Portion of the liquor which exceeded the permissible limit of wastage did not reach the appellant 's Warehouse and was not found therein and the shortage remained unaccounted for. It is thus evident that duty is not sought to be charged on an excisable article which was not in existence, as contended on behalf of the appellant but is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof. There is accordingly no merit or substance in the second contention advanced on behalf of the appellant as well. The decision of this Court in Bimal Chandra Banerjee vs State of Madhya Pradesh(l) which is strongly relied upon on behalf of the (1) ; 518 appellant is not applicable to the present case. In that case, the condition introduced by the state Government in the purported exercise of its power under clause (d) and (h) of section 62(2) of the Madhya Pradesh Excise Act, 1915, in the appellants ' licenses prescribing the minimum quantity of liquor to be purchased by them from the Government and enjoining them to make compulsory payment of excise duty on the quantity of liquor which they failed to take delivery of was held to be invalid as it went beyond. The provisions of sections 25, 26 27, 62(1) and ' clauses (d) and (h) of section 62(2) of the aforesaid Act. In the present case, however, the liquor was lifted by the appellant from its distilleries in Uttar Pradesh and a portion thereof remained unaccounted for, as already stated, on arrival of the consignments at their destination. For the foregoing reasons, the respondents were right in demanding the duty on the shortages. In the result, the appeals fail and are dismissed with costs, limited to one set.

Sections 53A and 53B of the Bombay Industrial Relations Act, 1946, were inserted in that Act by the Bombay Industrial Relations and Industrial Disputes (Gujarat Amendment) Act, 1972. They relate to the constitution of joint management councils, which include representatives of the employees also, for the purpose of forestalling and preventing industrial disputes. Consequent amendments were made in the Bombay Industrial Relations (Gujarat) Rules. The appellants challenged the two sections on the ground that the State Legislature was incompetent to enact them. According to the appellants, the impugned legislation falls under Entries 43, 44 and 52 of List I, VII Schedule to the Constitution, which relate to matters of incorporation etc. The High Court held that they fall under Entries 22 and 24 of List III, which relate to labour welfare and industrial disputes, and that the State Legislature was competent to enact them. Dismissing the appeal to this Court, ^ HELD: It has been recognised during the last hundred years that the wage earners should have an effective voice in the management of the industry in which they are working. The concept of joint management of industry by the employer and the employee may have a wide connotation, because, the joint management councils may not only perform such functions as pertain to welfare of labour, that is, those relating to the various objectives mentioned in cls. (a) to (f) of section 53B(1) but may also claim to exercise such functions as can be discharged by the board of directors. This wider aspect of the joint management would however be impermissible under the impugned provisions, because the provisions should be so construed and implemented as would sustain their constitutional validity. They have been enacted by the State Legislature and so the functions which can be performed by the joint management councils have to be of such a character as would pertain to welfare of labour or prevent industrial disputes. If the impugned legislation, in pith and substance, relates to subjects which are within the competence of the State Legislature, the fact that there is an incidental encroachment on matters which are the subject matter of Entries in List I, would not affect the legislative competence of the State Legislature to pass the impugned legislation. [628A, 629E] Rules in the very nature of things can operate only in that field in which the parent Act can operate, and hence, the impugned rules, likewise, relate to subjects which are within the competence of the State Legislature. [628D]

Appeal No. 2338 of 1968. Appeal from the judgment and order dated March 31, 1965 of the Patna High Court in Misc. Judicial Case No. 1207 of 1964. Jagadish Swarup, Solicitor General and B. K. P. Sinha, for the appellants. B. C. Ghosh, P. K. Chatterjee and Rathin Das, for the respondent. The Judgment of the Court was delivered by Mitter, J. The question in this appeal is, whether the order of suspension passed on the respondent on July 31, 1964 was properly struck down by the Patna High Court. The facts are as follows. The respondent is a member of the Indian Police Service appointed on 25th January, 1937 and at the material time he was holding the substantive rank of Deputy Superintendent of Police in Bihar. In June 1962 he was posted at Ranchi. He was transferred to Patna and appointed as Special Officer, Political, General and Transport Department on July 23, 1964. The order of which the validity is in question ran as follows : "Whereas serious allegations of corruption and malpractices have been made against Shri T. N. Ghosh, 1. P., Deputy inspector General of Police, Southern Range, Ranchi; And whereas the said Shri T. N. Ghosh is also reported to have contravened certain provisions of the All India Services (Conduct) Rules, 1954; And whereas the enquiries made by the Government of Bihar ;Into these allegations have revealed that there is a prima facie case made out against him; And whereas disciplinary proceedings in respect of these matters are contemplated against the said Shri T. N. Ghosh; 717 And whereas the Government of India, after carefully consi dering the available material, and having regard to the nature of the charges and circumstances of the case, are satisfied that it is necessary and desirable to place the said Shri T. N. Ghosh under suspension Now, therefore, the Government of India hereby place the said Shri T., N. Ghosh, under suspension with immediate effect, until further orders, and direct that the said Shri T. N. Ghosh shall, during the period of suspension be paid such subsistence allowance as is admissible under the rules. By order and in the name of the President of India. Sd./ K. Sivaraj Deputy Secretary to the Government of India. " The respondent addressed a memorial to the Secretary to the Government of India, Ministry of Home Affairs on 24th August 1964 complaining against the above order on the ground that it was not sanctioned by the rules i.e. All India Service (Conduct) Rules, 1954. In particular his grievance was that as there were only allegations against him which had not crystallised into charges an order of suspension could not be made before departmental proceedings were actually started and while they were merely contemplated. He also asked for communication of the nature of the departmental proceedings which had been started against him within 14 days with a request that the order of suspension be withdrawn in default thereof. It appears that there was no response to this. The respondent filed his writ petition on September 14, 1964 praying for the quashing of the order particularly on the above grounds raised in his memorandum. A counter affidavit to the petition was filed on behalf of the Chief Secretary to the Government of Bihar who was the third respondent in the petition. The averments in the said affidavit were that a report had been made to the Central Government against the petitioner on July 6, 1964 and having regard to the activities of the petitioner it had become necessary to remove him from the field of activities and as such he had been transferred to, Patna after being relieved of his post on July 1 3, 1964. It was said further that even before the receipt of the suspension order the petitioner had been actually questioned by section P. Verma, the then Inspector General of Police, Bihar as early as February 8, 1964 apprising the petitioner that his activities had attracted the attention of Government. It was admitted that departmental enquiry and investigation into the conduct of the petitioner were still going on and as such charges had not been framed against 718 him. Finally, it was said that the order was not by way of punishment and had been passed pending departmental enquiry into his conduct. Another counter affidavit was filed on behalf of the Government of India and the Deputy Secretary to the Government of India, respondents 1 and 2 in the petition wherein substantially the same averments were made as in the counter affidavit on behalf of respondent No. 3. A large number of points were canvassed before the High Court which examined the provisions of different sets of rules and relying particularly on the difference in wording of rule 12 of the Central Civil Services Rules which empowered the appointing authority to place an officer under suspension inter alia, where a disciplinary proceeding against him was contemplated or was pending and rule 7 of the All India Services Rules (quoted in extensor hereinafter) it came to the conclusion that the order of suspension was not proper. Further, according to one of the Judges of that Court: "To allow a member of that (the AR India) service to be placed under suspension without the formal proceeding in started may cause humiliation to an officer of such high rank without any justification whatsoever. " According to the other learned Judge who took substantially the same view the order of suspension only indicated that disciplinary proceedings against the petitioner were in contemplation and this was not provided for in rule 7. In our view it would not be proper to interpret the provisions of the All India Service (Discipline and Appeal) Rules 1955 by reference to the provisions of other rules even if they were made by or under the authority of the President of India. The All India Services (Discipline and Appeal) Rules 1955 as they stood at the relevant time were a self contained code and we have to examine the provisions thereof to find out whether the order passed on the petitioner was justified. These rules were promulgated in exercise of the powers conferred by sub section ( 1 ) of section 3 of the All India Services Act 1951 by the Central Government after consultation with the Governments of the States concerned. They were applicable to members of the Indian Administrative Service and those of the Indian Police Service. 3 of the Rules provided for penalties which might for good and sufficient reasons be imposed on a member of the service. Suspension is not a penalty covered by this clause. Cl. 4 indicated the authorities who would institute proceedings and impose penalty against mem 719 bers of the Services. Cl. 5 which generally dealt with the procedure for imposing penalties provided by the first three sub clauses as follows "(1) Without prejudice to the provisions of the Public Servants Inquiry Act, 1850, no order shall be passed imposing any of the penalties specified in rule 3 on a member of the Service unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending hims elf. (2) The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. (3) The member of the Service shall be required within such time as may be considered by the Government reasonably adequate in the circumstances of the case, to put in a written statement of his defence and to state whether he desires to be heard in person. (4) to (10) It was only after the written statement was received from the member that the Government might, if it considered necessary, appoint a Board of Enquiry or an Enquiry Officer to enquire into the charges framed against him. Other sub clauses of this rule laid down generally the procedure which was to be adopted in the enquiry. Rule 7 provided as follows : "Suspension during disciplinary proceedings. (1) If having regard to the nature of the charges and the circumstances in any case the Government which initiates any disciplinary proceedings is satisfied it is necessary or desirable to place under suspend the member of the Service against whom such proceedings are started that Government may (a) if the member of the Service is serving under it pass an order placing him under suspension, or (b)if the member of the Service is serving under another Government, request that Government to place him under suspension, pending the conclusion of the inquiry and the, passing of the final order in the case 100SupCI/71 7 2 0 Provided that in cases where there is a difference of opinion between two State Governments, the mater shall be referred to the Central Government whose decision thereon shall be final. (2) A member of the Service who is detained in official custody whether on a criminal charge or otherwise, for a period longer than forty eight hours, shall be deemed to have been suspended by the Government concerned under this rule. (3) A member of the Service in respect of or against whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge. ' if the charge is connected with his position as a Govt. servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. Under rule 8 a member of a Service who was placed under sus pension was to be entitled to receive payment from the Government suspending his subsistence allowance as specified therein. The crucial question in this case is, whether suspension of a member of the Service can only be ordered after definite charges have been communicated to him in terms of sub cl. (2) of rule 5 or whether the Government is entitled to place an officer under suspension even before that stage has been reached after a preliminary investigation has been made into the conduct of the officer concerned following allegations of corrupt or malpractice levelled against him. To determine this it is necessary to find out the object of placing a Government officer under "suspension" in terms of the said rule. 'Suspension ' according to the Oxford Dictionary means "the :action of suspending or condition of being suspended; the action of debarring or state of being debarred, esp. for a time, from a function or privilege; temporary deprivation of one 's office or position". A master can, subject to the contract of service, ask his servant not to render any service without assigning any reason but this would not be by way of punishment and the master would have to pay the servant his full wages or remuneration in such an eventuality. As Halsbury puts it : "Whether or not the master has power to suspend a servant during the duration of the contract of service depends upon the construction of the particular contract. In the absence of any express or implied term to the contrary, the master cannot punish a servant for alleg 72 1 ed misconduct by suspending him from employment and stopping his wages for the period of the suspension. " (See Halsbury 's Laws of England, Third Edition, Vol. 25, article 989 page 518). Rule 7 of the Service Rules expressly provides for suspending of a member of the Service for the purpose of disciplinary proceedings. When serious allegations of misconduct are imputed against a member of a Service normally it would not be desirable to allow him to continue in the post where he was functioning. If the disciplinary authority takes note of such allegations and is of opinion after some preliminary enquiries that the circumstances of the case justify further investigation to be made before definite charges can be, framed, it would not be improper to remove the officer concerned from the sphere of his activity inasmuch as it may be necessary to find out facts from people working under him or look into papers which are in his custody and it would be embarrassing and inopportune both for the officer concerned as well as to those whose duty it was to make the enquiry to do so while the officer was present at the spot. Such a situation can be avoided either by transferring the officer to some other place or by temporarily putting him out of, action by making an order of suspension. Government may rightly take the view that an officer against whom serious imputations are made should not be allowed to function anywhere before the matter has been finally set at rest after proper scrutiny and holding of departmental proceedings. Rule 7 is aimed at taking the latter course of conduct. Ordinarily when serious imputitions are made against the conduct of an officer the disciplinary authority cannot immediately draw up the charges : it may be that the Imputations are false or con cocted or gross exaggerations of trivial irregularities. A considerable time may elapse between the receipt of imputations against an officer and a definite conclusion by a superior authority that the circumstances are such that definite charges can be levelled against the officer. Whether it is necessary or desirable to place the officer under suspension even before definite charges have been framed would depend upon the circumstances of the case and the view which is taken by the Government concerned. There would be nothing improper per se if the rules were to provide for suspension even before definite charges of misconduct had been communicated to the officer concerned. The question is whether the language of rule 7 is so correlated to that of rule 5 as to lead us to hold that the word "charges" in sub cl. (1) of rule. 7 must mean a definite charge as mentioned in subcl. (2) of r. 5. It may be that even a case where definite charges have been raised against an officer he may satisfactorily explain the circumstances and the grounds alleged against him in his 722 written statement. It is also possible that after. the enquiry is conducted it is found that the charges are all baseless. In principle we can see no difference between the position of an officer against whom definite charges have been framed to which he is required to put in his written statement and a situation where on receipt of allegations of grave misconduct against him the Government is, of opinion that it would not be proper to allow the officer concerned to function in the ordinary way. The matter is however not res integra and there is a series of decisions of this Court which throw considerable light on the power of a master including a Government to suspend a servant or an officer under rules of service or even de hors such rules. The law of master and servant including Government servants with regard to suspension of an employee was discussed at some length in The Management of Hotel Imperial V. Hotel Workers ' Union(1). However rules of service of Government officers did not fall for consideration there. Champak Lal Chimanlal Shah vs The Union of India(1) was a case where a temporary Government servant 's services were terminated. The case shows, as is well known, that even More a formal departmental enquiry is launched a preliminary enquiry is usually held to find out whether a prima facie case is made out against a Government servant. This preliminary enquiry is directed to the collection of facts in regard to the work and conduct of a Government servant in which he may or may not be associated so that the authority concern may decide whether or not to subject the servant concerned to the enquiry under article 311 for inflicting one of the three major punishments mentioned therein and such a preliminary enquiry may even be held ex parte. In R. P. Kapur vs Union of India & another(3) the general principles governing a master and servant were discussed in some detail and it was said "If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his, full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale, of payment during suspension, the payment would be in accordance there with. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry (1) ; , 482. (2) (3) ; , 445. 72 3 into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. " There is however a direct authority of this Court in section Govinda Menon vs The Union of India(1). The appellant before this Court was a member of the Indian Administrative Service. He was the First Member of the Board of Revenue, Kerala State and was holding the post of Commissioner of Hindu Religious and Charitable Endowments. On the basis of certain _ complaints containing allegations of misconduct against the appellant in the discharge of his duties as such Commissioner the Kerala Government instituted certain preliminary enquiries and thereafter started disciplinary proceedings against him and also placed him under suspension under rule 7 of the All India Services (Discipline and Appeal) Rules. One of the grounds urged by the appellant was that the order of suspension which was dated March 8, 1963 was not in compliance with rule 7 inasmuch as definite charges were framed against him only on 6th June, 1963. On the basis of rule 5(2) it was argued that the word "charges" which occurred in 'this rule and in rule 7 should be given the same meaning and no ,order of suspension could be passed under rule 7 before the ,charges in terms of r. 5(2) were tramed against him. This was turned down by this Court observing (at p. 582) : "Rule 5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. The framing of the charge under Rule 5(2) is necessary to enable the member of the Service to meet the case against him. The language of rule 7(1) is however different and that rule provides that the Government may place a member of the Service under suspension "having regard to the nature of the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of the difference of language in rule 5(2) and rule 7 we are of the opinion that. the word charges ' in rule 7(1) should be given a wider meaning as denoting the accusation or imputation against the member of the Service. " It is worthy of note, that in the order of suspension it was stated as follows "The Government have received several petitions containing serious allegations of official misconduct (1) [1967]2 S.C.R. 565. 724 against Shri section Govinda Menon . Prelimi nary enquiries caused to be conducted into the allegations have shown prima facie that the officer is guilty of corruption. The Kerala High Court has also occasion to comment on the conduct of the officer in their judgment in O.P. 2306 of 1962 delivered on, 12th February 1963. . The judgment in the above case and the preliminary report of the X Branch police have disclosed the following grave charges of serious irregularity and official misconduct on the part of the accused officer The detailed enquiry into 'the charges by the XBranch is in progress. The evidence in the case has to be collected from a large number of officers who are. subordinate to the accused officer in his capacity as First Member of the Board of Revenue. In the interest of the proper conduct of the enquiry it is necessary that the officer should not be allowed to continue in that post. Having regard to the nature of the charges against the officer and the circumstances the proper course would be to place him under suspension. Shri section Govinda Menon I.A.S. . is therefore placed under suspension under Rule 7 of the All India Services (Discipline and Appeal) Rules 1955 till the disciplinary proceedings initiated against him are completed. ', It was urged before us that the order of suspension there was different from the one before us. While there is no doubt that the order against the appellant in the above case was far more detailed both with regard to the nature of the charges and to the necessity of placing him under suspension, in substance there is little difference for the purpose of rule 7 of the Service Rules. The order in this case dated 31st July 1964 shows that serious allegations of corruption and malpractices had been made against the respondent and he was also reported to have contravened the provisions of the All India Service Conduct Rules and enquiries made by the Government of Bihar into the allegations had revealed that there was a prima facie case made out against him. Merely because the order mentioned that disciplinary proceedings were contemplated against the respondent, as compared to rule 7 which contains phrases like "the initiation of disciplinary proceedings" and the "starting of such proceedings" we cannot hold that the situation in the present case had not reached a stage which called for an order of suspension. In substance disciplinary proceedings can be said to be started against an 7 25 officer when complaints about his integrity or honesty are entertained and followed by a preliminary enquiry into them culminating in the satisfaction of the Government that a prima facie case has been made out against him for the framing of charges. When the order of suspension itself shows that Government was of the view that such a prima facie case for departmental proceedings had been made out the fact that the order also mentions that such proceedings were contemplated makes no difference. Again the fact that in other rules of service an order of suspension may be made when "disciplinary proceeding ', were, contemplated" should not lead us to take the view that a member of an All India Service should be dealt with differently. The reputation of an officer is equally valuable no matter whether he belongs to the All India Service or to one of a humbler cadre. It is the exigency of the conditions of service which requires or calls for an order of suspension and there can be no difference ,in regard to this matter as between a member of, an All India Service and a member of a State Service or a Railway Service. In the result the appeal is allowed but in the circumstances, of the case we direct the parties to pay and bear their own costs. V.P.S. Appeal allowed.

The respondent company holding leasehold rights in the appellant land went into liquidation. Accepting the. official liquidator 's report the company Judge (Rajasthan High Court) without hearing anyone or issuing notice to the appellant ordered auction of the lease hold right of the respondent company. The appellant sent a letter to the Official Liquidator revoking the licence granted to the company and calling upon him to, deliver possession of the land. The Official Liquidator claimed that the company was entitled to a further period of lease under the agreement. Notice was issued in respect of the proposed auction sale. The appellant filed an appeal before the High Court. The High Court held that since the appellant had not appeared before the company Judge, she was not entitled to maintain the appeal, and further that the only remedy of the appellant was by way of a suit after obtaining leave of the Company Judge under section 446 of the Indian Companies Act. In appeal to this Court, HELD : The High Court was in error in not entertaining and deciding the appeal preferred by the appellant who was the owner of the land in which lease hold rights said to have been created by her in favour of the company in liquidation were sought to be sold. An appeal lies under section 483 of the Act from any order made or decision given in the matter of winding up of a company by the Court and it lies to the same, court to which, in the same manner in which, and subject to the same conditions under which appeals lie from any order or decision of the Court in cases within its ordinary jurisdiction. Therefore an appeal was corn tent against the order of the company Judge. [249 D] It is implicit in Rule 103 of the Company Court Rules that if the directions which have to be given by the Court would affect any person prejudicially he must be served with a notice of the summons under the general rule of natural justice and that no order should be made affecting the rights of a party without affording a proper opportunity to it to represent its case. A] Further, the Official Liquidator as well as the, learned company Judge were bound by the rules of natural justice to issue a notice to the appellant and hear her before making the order appealed against. If there was default on their part in not following the correct procedure the appellant could not be deprived of her right to get her grievance redressed by filing an appeal. [250 C] 248

ivil Appeal Nos. 4 132 4 133 (NCE) of 1986. From the Judgment and order dated 22.10.1986 of the Rajas : than High Court in S.B. Election Petition Nos. 1 and 9 of 1985. N.M. Ghatate, B.R. Dutta and S.V. Deshpande for the Appellant. Dr. Y.S. Chitale, M.R. Calla and Jitendra Sharma for the Respondents. The Judgment of the Court was delivered by SINGH,J. These two appeals under Section 116 A of the Rep resentation of the People Act, 1951 (hereinafter referred to as the Act) are directed against the judgment and order of the High Court of Rajasthan at Jaipur dated 22nd October 1986 setting aside the appellant 's election to the Legislative Assembly of the State of Rajasthan. Election to the Rajasthan Legislative Assembly Constituency No. (80 Karauli) was held in 1985. The appellant and 10 other candidates contested the election from the aforesaid assembly constituency. The Returning officer declared the appellant duly elected on his having obtained majority of valid votes. Chandra Bhan Singh, Respondent No. 1, filed Election Petition No. 1 of 1985 as an elector and another Election Petition No. 9 of 1985 was filed by Mukand Ram, Respondent No. 2, also an elector before the High Court of Rajasthan under Section 80 of the Act, challenging the validity of the appellant 's election to the legislative assembly on the ground that Kanhaiya Lal a contesting candidate was not qualified to contest election under Article 173(b) of the Constitution as he was below 25 years of age on the date of scrutiny of nomination papers and his nomination paper was improperly accepted by the Returning officer which materially affected the result of the election of the returned candidate. The appellant appeared and contested both the election petitions? and pleaded before the High Court the Kanhaiya Lal was qualified to be a candidate at the election as he had completed 25 years of age on the date of scrutiny of nomination papers and there was no improper acceptance of his nomination paper. He further pleaded that in any view, his election was not materially affected by the acceptance of Kanhaiya 717 Lal 's nomination paper. Both the election petitions were consolidated and tried jointly by the High Court. The issues framed were almost identical in the two election petitions and the election petitioners and the appellant produced evidence in support of their cases before the High Court. The High Court by its order dated 22nd October, 1986 held that Kanhaiya Lal was not qualified to be a candidate as he had not completed 25 years of age and that his nomination paper was improperly accepted by the Returning officer. The High Court further held that since the difference between the votes polled by the appellant and Roshan Lal an unsuccessful candidate who had obtained the next highest votes was only 4497 votes, the result of the election was materially affected. On these findings the High Court declared the appellant 's election void and directed the Election Commission to hold fresh election. Learned counsel for the appellant raised only one submission before us in challenging the correctness of the order of the High Court. He urged that the finding recorded by the High Court that the improper acceptance of the nomination paper of Kanhaiya Lal had materially affected the result of appellant 's election was based on conjectures and surmises and not on any legal evidence. Learned counsel further submitted that none of the two election petitioners had produced any cogent and reliable evidence to discharge the burden that the result of the election was materially affected on account of improper acceptance of the nomination paper of Kanhaiya Lal but on the other hand the appellant had produced large number of witnesses in support of his case, but the High Court had failed to consider the evidence of those witnesses. Dr. Chitale appearing on behalf of the Respondents urged that on the material on record and having regard to the number of votes polled by Kanhaiya Lal and the difference between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal the findings recorded by the High Court are sustainable in law and the same are in accordance with the law laid down by this Court in Chhedi Ram vs Jhilmit Ram & others. ; , In all eleven candidates contested the election. After counting, it was found that the total number of votes polled were 60815 out of which 821 votes were rejected being invalid by the Returning officer. Thus the total number of valid votes were 59994. The total valid. number of votes polled by each of the candidates was as under: H 718 1. Shiv Charan Singh (appellant) 21443 2. Kanhaiya Lal. 17341 3. Asphak. 275 4. Narayan. 1310 5. Prahlad 252 6. Puran Chandra Sharma. 1308 7. Mana Lal 198 8. Ram Swaroop. 102 9. Roshan Lal. 16946 10. Samanta. 271 11. Heera Lal 40 The High Court has held that Kanhaiya Lal 's nomination paper was improperly accepted, as he was not competent to contest the election for the reason of his being below 25 years of age. Since there was difference of only 4497 votes between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal who had polled 16946 votes the High Court held that if Kanhaiya Lal had not contested the election the aforesaid number of votes polled by him could have gone in favour of Roshan Lal and other candidates, as a result of which Roshan Lal would have polled the majority of valid votes. In this view the High Court concluded that the result of the appellant 's election was materially affected and it accordingly declared the appellant 's election void. Since the learned counsel for the appellant did not challenge the finding recorded by the High Court that Kanhaiya Lal was not qualified to be a candidate on the date of his nomination as he was below 25 years of age and his nomination paper was improperly accepted by the Returning officer the said finding must be accepted as correct. The only question which survives for consideration is whether improper acceptance of Kanhaiya Lal 's nomination paper materially affected the result of the appellant 's election. Section 100 confers power on the High Court to declare the election of the returned candidate void if the grounds set out therein are made out. Section 100 (1) relevant for our purpose is as under: "100. Grounds for declaring election to be void. (1) Subject to the provisions of sub section (2) if the High Court is of opinion. (a) that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution or this Act or the Govern 719 ment of Union Territories Act, 1963 (20 of 1963)or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected: (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act. the High Court shall declare the election of the returned candidate to be void. " Section 100(1)(d)(i) provides for setting aside the election of the returned candidate on the ground of improper acceptance of any nomination paper provided the result of the election of the returned candidate is materially affected by reason of such improper acceptance of nomination of a candidate other than the returned candidate. Improper acceptance of nomination paper of any contesting candidate (other than the contesting candidate) does not ipso facto render the election of the returned candidate void. The election can be declared void only if it is found that the result of the election of the returned candidate was materially affected on the ground of such improper acceptance. The burden of proving the material effect on the result of election is always on the election petitioner challenging the validity of the election of the returned candidate. Unless this burden is discharged by the election petitioner the result of the returned candidate cannot be declared void. 720 The question as to how and in what manner the burden of Providing that the result of election was materially affected should be discharged is a vexed question which has been considered by this Court in a number of cases. In the leading case of Vashist Narain Sharma vs Dev Chandra and others; , this Court considered this question at length. In that case the nomination paper of one Dudh Nath a contesting candidate who had polled 1983 votes was found to have been improperly accepted. The returned candidate had polled 12860 votes while Vireshwar Nath Rai had polled 10996 votes being the next highest number of votes. There was thus difference of 1864 votes bet ween the votes polled by the returned candidate and the next unsuccessful candidate. The Election Tribunal set aside the election of the returned candidate on the finding that improper acceptance of the nomination paper of Dudh Nath had materially affected the result of the election. This Court set aside the order of the Tribunal on the ground that the election petitioner had failed to discharge the burden of proving that the result of the election had been materially affected. The Court observed as under: "But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes bet ween the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many of which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(l)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand. " Section 100 (l)(c) of the Act as it stood in 1952 was in pari materia with the present Section 100(l)(d)(1) of the Act. The 721 interpretation of Section 100 (1)(c) of the Act as given by the Court in Vashist Narain Sharma 's, case fully applies to the interpretation of Section 100(1)(d)(1) of the Act. In Vashist Narain Sharma 's, case this Court has categorically held that the result of the election of the returned candidate cannot be materially affected merely for the reason that the number of votes polled by the candidate whose nomination paper was improperly accepted was greater than the margin of votes polled by the returned candidate and the candidate securing the next highest number of votes, because it could not be predicated in what manner or proportion the voters would have exercised their choice in the absence of the improperly nominated candidate from the election contest. Proceeding further the Court considered the question whether any speculation, or conjecture could be made in a case where the number of votes secured by the candidate whose nomination paper was improperly accepted was higher than the difference between the votes polled by the returned candidate and the candidate who may have polled the next highest number of votes. The Court observed that in such a case it was impossible to foresee what the result would have been if the improperly nominated candidate had not been in the field. Since it was not possible to anticipate the result, the election petitioner must discharge the burden of proving that fact, and on his failure to prove that fact the election of the returned candidate must be allowed to stand. Then the question arose as to how and in what manner the burden could be discharged by the election petitioner. On behalf of election petitioner an attempt had been made to discharge burden by producing a number of electors before the Tribunal who had stated that all or some of the votes would have gone to the candidate who had polled the next highest number of votes in the absence of the improperly nominated candidate and he would have polled majority of valid votes. The Court held that the statement of the witnesses as to in what manner votes would have been distributed among the remaining contesting candidates could not be relied upon in determining the question of material effect on the election of the returned candidate. The Court observed: "It is impossible to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must 722 stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter entirely for the Legislature to consider. (Underlining by us) Tn Paokai Haokip vs Rishang Ors. , ; the Judicial Commissioner Manipur had set aside the election of the returned candidate to Lok Sabha on the ground that there was gross violation of the Act and the Rules framed thereunder in conducting the election as a result of which the result of the election was materially affected under Section 100(1)(d)(iv) of the Act on the findings that on the polling date a number of polling centres were changed without notice to voters and there was firing and riots at some polling stations, as a result of which a number of voters could not exercise their right to vote. In rendering the aforesaid findings the Judicial Commissioner had placed reliance upon the statement of witnesses who had testified before the Tribunal that if they had opportunity to cast their votes, they would have voted for the unsuccessful candidate. This Court, placing reliance on the decision in Vashist Narain Sharma 's case held that the statement of witnesses could not be taken at their word and it was a surmise and anybody 's guess as to how those people, who did not vote, would have actually voted. Then the question arose if witnesses could not be relied upon, in what manner the election petitioner, could discharge the burden. Referring to the decision in Vashist Narain Sharma 's case the Court observed as under: "How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way of determining the burden, the law should say it and not the courts. It is only in given instances that, taking the law as it is, the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not. We are satisfied that in this case this burden has not been discharged." (Underlining by us) 723 We are in respectful agreement with the view taken by this Court in the aforesaid decisions. The election of a returned candidate cannot be declared void on the ground of improper acceptance of nomination paper of a contesting candidate unless it is established by positive and reliable evidence that improper acceptance of the nomination of a candidate materially affected the result of the election of the returned candidate. The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes. In other words the result of the election of the candidate cannot be held to have been materially affected unless it is proved that in the absence of the candidate whose nomination paper was wrongly accepted in the election contest, any other candidate (other than the returned candidate) would have polled the majority of valid votes. In the absence of any such proof the result cannot be held to have been materially affected. The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof. But the difficulty in proving this fact does not alter the position of law. The legislative intent is clear that unless the burden howsoever difficult it may be, is discharged, the election cannot be declared void. The difficulty of proving the material effect was expressly noted by this Court in Vashist Narain Sharma 's and Paokai Haokip 's, cases and the Court observed that the difficulty could be resolved by the Legislature and not by the Courts. Since then the Act has been amended several times, but Parliament has not, altered the burden of proof placed on the election petitioner under Section 100(1)(d) of the Act. Therefore the law laid in the aforesaid decisions still hold the field. It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates. Legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election has to be discharged by the person challenging the election and the Courts cannot speculate on the question. In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures. In the instant case Shiv Charan Singh the appellant had polled 21443 votes and Roshan Lal had polled 16496 the next highest number 724 Of votes. There was thus a difference on 4497 votes between the votes polled by the appellant and Roshan Lal. Kanhaiya Lal whose nomination paper had improperly been accepted, had secured 17841 votes which were wasted. The election petitioners did not produce any evidence e to discharge the burden that improper acceptance of the nomination paper of Kanhaiya Lal materially affected the result of the election of the returned candidate. On the other hand the appellant who was the returned candidate produced 21 candidates representing cross section of the voters of the constituency. All these witnesses had stated before the High Court that in the absence of Kanhaiya Lal in the election contest, the majority of the voters who had voted for Kanhaiya Lal would have voted for Shiv Charan Singh the appellant. The High Court in our opinion rightly rejected the oral testimony of the witnesses in view of this Court 's decision in Vashist Narain Sharma 's, case. The High Court however having regard to the votes polled by the appellant Roshan Lal and Kanhaiya Lal held that the result of the election was materially affected. The High Court held that in view of the fact that difference between Shiv Charan Singh the appellant and Roshan Lal was only 4497 and Kanhaiya Lal, whose nomination was improperly accepted had secured 17841 votes therefore it could reasonably be concluded that the election was materially affected. In our opinion the High Court committed error declaring the appellant 's election void on speculations and conjectures. Indisputably, the election petitioners had failed to discharge the burden of proving the fact that the result of election of the appellant had been materially affected by reason of improper acceptance of the nomination paper of Kanhaiya Lal. In the absence of any positive evidence produced by the election petitioners, it was not open to the High Court to record findings that the result of the election was materially affected. The High Court 's findings relating to the material effect on the result of the election are based on conjectures and surmises and not on any evidence. The Legislature has, as noted earlier placed a difficult burden on the election petitioner to prove that the result of the election was materially affected by reason of improper acceptance of nomination paper of a candidate (other than the returned candidate) and if such burden is not discharged the election of the returned candidate must be allowed to stand as held by this Court in Vashist Narain Sharma 's and in Paokai Haokip 's case. It is true that the burden placed on the election petitioner in such circumstances is almost impossible to discharge. But in spite of the fact that this Court had highlighted this question on more than one occasion, Parliament has not amended the relevant provisions although the Act has been 725 subjected to several amendments. It is manifest that law laid down by this Court in Vashist Narain Sharma 's case and Paokai Haokip 's case holds the field and it is not permissible to set aside the election of a returned candidate under Section 100(1)(d) on mere surmises and conjectures. If the improperly nominated candidate had not been in the election contest, it is difficult to comprehend or predicate with any amount of reasonably certainty the manner and the proportion in which the voters who exercised their choice in favour of the improperly nominated candidate would have exercised their votes. The Courts are ill equipped to speculate as to how the voters could have exercised their right of vote in the absence of improperly nominated candidate. Any speculation made by the Court in the this respect would be arbitrary and contrary to the democratic principles. It is a matter of common knowledge that electors exercise their right of vote on various unpredictable considerations. Many times electors cast their vote on consideration of friendship, party affiliation, local affiliation, caste, religion, personal relationship and many other imponderable considerations. Casting of votes by electors depends upon several factors and it is not possible to forecast or guess as to how and in what manner the voters would have exercised their choice in the absence of the improperly nominated candidate. No inference on the basis of circumstances can successfully be drawn. While in a suit of proceedings it may be possible for the Court to draw inferences or proceed on probabilities with regard to the conduct of parties to the suit or proceedings, it is not possible to proceed on probabilities or draw inferences regarding the conduct of thousands of voters, who may have voted for the improperly nominated candidate. In the instant case there were 11 contesting candidates. If Kanaiya Lal whose nomination paper had been improperly accepted was not in the election contest, it is difficult to say in what proportion the voters who had voted for him would have voted for the remaining candidates. There is possibility that many voters who had gone to the polling station to cast their votes in favour of Kanaiya Lal may not have gone to exercise their vote in favour of the remaining candidates. It is probable that in the absence of Kanaiya Lal in the election contest, many voters would have voted for the returned candidate as he appeared to be the most popular candidate. It is difficult to comprehend that the majority of the voters who exercised their choice in favour of Kanaiya Lal would have voted for the next candidate Roshan Lal. It is not possible to forecast how many and in what proportion the votes would have gone to one or the other remaining candidates and in what manner the wasted votes would have been distributed among the remaining contesting candidates. In this view, the result of the returned candidate could not be declared void on the basis 726 of surmises and conjectures. The High Court placed reliance on the decision of this Court in Chhedi Ram 's case in holding that the result of the election was materially affected in view of the margin of difference between the appellant and Roshan Lal and the votes secured by Kanaiya Lal. The decision in Chhedi Ram 's case does not over rule earlier decisions of this Court in Vashist Narain Sharma and Paokai Haokip 's case and it does not lay down any different law. Instead the decision of the case turned upon the facts of that case. In Chhedi Ram 's case there were four contesting candidates. Jhilmit Ram the returned candidate had polled 17822 votes while Chhedi Ram had polled the next highest number of votes being 17449 votes. Thus the difference between the successful candidate and the candidate who had secured the next highest number of votes was 373 votes only. While Moti Ram whose nomination paper was found to have been improperly accepted had polled 6710 votes. The High Court had dismissed the election petition on the finding that the result of the election had not been materially affected as a result of the improper acceptance of the nomination paper of Moti Ram. This Court allowed the appeal and set aside the election of the returned candidate on the finding that if the number of votes secured by the candidate whose nomination was improperly accepted was not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, there was a reasonable probability that the result of the election had been materially affected and one may venture to hold that fact as proved. After making these observations the Court noted that in that case the candidate whose nomination was improperly accepted had obtained 6710 votes i.e. almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, in that situation the result of the election was held to have been materially affected. The decision in Chhedi Ram 's case rests on its own facts. Applying the principle laid down in Chhedi Ram 's case to the facts of the instant case it is not possible to hold that the result of the election of the appellant was materially affected. As already noted the appellant had polled 21443 votes while Roshan Lal had polled the next highest number of votes 16946 and the difference between the two was only 4497 votes while the votes polled by the improperly nominated candidate Kanaiya Lal was 17841 thus the proportion of difference was only four times, while 727 the difference in Chhedi Ram 's case was 20 times. Further in Chhedi Ram 's case there were only 4 contesting candidates while in the instant case there were 11 contesting candidates and in the absence of Kanaiya Lal other remaining 10 would have shared the wasted votes. On these facts even on the basis of Chhedi Ram 's case it is not possible to draw any inference or act on probability and to record a finding that the majority of wasted votes would have gone to Roshan Lal in such a way as to affect the result of the appellant 's election. In the circumstances, the findings recorded by the High Court that the result of the election of the appellant was materially affected is not sustainable in law. In the result, we hold that the election petitioners have failed to prove that the result of the election of the appellant was materially affected on the ground of improper acceptance of nomination paper of Kanaiya Lal. Therefore, the election of the returned candidate could not be declared void. We accordingly allow the appeals, set aside the judgment and order of the High Court, uphold the appellant 's election and dismiss the election petitions with costs throughout. N.P.V. Appeals allowed.

% As a result of the order passed by the High Court, proceedings under section 44(2a) of the West Bengal Estates Acquisition Act, 1953 were re opened by the Special Revenue officer and final orders were passed on 9.2.1982. The Ist respondent preferred an appeal against this order before the 9th Additional District Judge, the competent authority to hear an appeal. On 1.12.83 the Ist respondent obtained an opinion of the Advocate General regarding the aforesaid proceedings, and filed that opinion with an application. The Additional District Judge passed an order on 25.2.86 rejecting the prayer of the Ist respondent that the appeal be disposed of in accordance with the opinion of the Advocate General, but observed that the opinion of the Advocate General could only be looked into as the ground of appeal on behalf of the Ist respondent. The date of hearing of the appeal was fixed on 19.4.86 to suit the convenience of the Advocates of the parties. A petition under article 227 was filed in the High Court against the 818 aforesaid order by the Ist respondent. The High Court treated this petition as a revision application challenging the order passed by the Additional District Judge on 25.2.86, and held that the Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General, and quashed the proceedings under Section 44(2a) as well as the appeal that was pending hearing before the Additional District Judge. Allowing the Appeal by the State this Court, ^ HELD: l. The High Court lost sight of the fact that the only grievance against the order of the 9th Additional District Judge was that he refused to decide the appeal in accordance with the opinion of the Advocate General and that he did not give an early date of hearing. The question about the suo moto proceedings under section 44(2a) and the validity of the Amendment Act, 1969 and its effect were not considered by the appellate authority and in fact the appeal was still pending before the 9th Additional District Judge which was yet to be heard and disposed of. [823G H] 2. The High Court after examining the legal aspect without having been raised before it decided the matter so that neither appeal remains nor any proceedings remain and in doing so the High Court went on without there being proper grounds before it and without giving an opportunity to the appellant State of West Bengal, to have their say in this matter. [824A B] 3. The order passed by the High Court dated 20.5.87 is, therefore, completely without jurisdiction and on matters which were not before it and also without giving adequate opportunity of hearing and, therefore, deserves to be quashed, and is quashed. [824B c] 4. The appeal that was filed by the Ist respondent before the 9th Additional District Judge was pending when the High Court passed the impugned order, revives. It could not be said that the appeal is disposed of as observed by the High Court. It is directed that the appeal which was pending before the 9th Additional District Judge shall be heard by the Additional District Judge in accordance with law. [824C D]

Civil Appeals Nos. 2070 to 2074 of 1970. From the Judgment and order dated 4th day of May 1970 of the Bangalore High Court in Writ Petitions Nos. 3958, 4035/68, 18 and 19 of 1969. V.S.Desai, P. C. Bhartari, J. B. Dadachanji, o. c. Mathur and R. Narain for the appellant. A. K. Sen and section S.Javali and B.P.Singh for Respondent No. 1. section N. Prasad and section P. Naydt for Respondent Union of India. The Judgment of the Court was delivered by RAY, C.J. These appeals are by certificate from the judgment of the High Court of Mysore dated 4 May, 1970. The several respondent Co operative Societies filed writ petitions in the High Court for quashing orders dated 11 September 11 1968 passed by the Government of India. The impeached orders granted exemption, partially or wholly, to the appellant under clause 5(3) of the Sugar Cane Control Order, 1966 (hereinafter referred to as the 1966 Control Order) 742 from the payment of additional cane price fixed by the Price Fixation Authority under clause 5(4) of the 1566 Control order. The High Court quashed the orders challenged by the respondents. The use and supply of sugarcane is controlled under the provisions of the . The Government of India promulgated the Sugar Cane Control order on 27 August 1955. The 1955 Control Order empowered the Government, inter alia, to fix the minimum price payable by the manufacturer of sugar to the grower of sugarcane. The Government was competent to fix different prices depending on the areas and qualities of sugarcane or on the basis of recovery of sugar from sugarcane. In 1966 the Sugar Cane Control (Additional Powers) Act, 1962 came in existence. In pursuance of powers conferred by the 1962 Act the Central Government amended the 1955 Control order by introducing clause 3A providing for payment of additional price for sugarcane purchased by producers of sugar during each of the four successive years beginning from 1 November 1958. The 1955 Control order was repealed and replaced by the Sugar cane Control order, 1966 to which reference has already been made. The 1966 Control order saved all orders made and actions taken under the repealed order. Under clause 6 of the 1966 Control order the Government was competent to denote an area where sugarcane is grown is a reserved area for a factory. The sugarcane grown in that area is required to be sold to the factory allotted. The Central Government determines the quantity of sugarcane to be supplied by the growers in the reserved area and the quantity of sugarcane which the factory requires for crushing during any year. The growers are required to enter into agreements with the factory to supply sugarcane of the quantity fixed under the provisions of the 1966 Control order. Restrictions are placed on the growers from using sugarcane grown by them for other purposes. The Government thus controls all aspects of the use of sugarcane grown hl the reserved area. It can prohibit or restrict or otherwise regulate export of sugarcane from any area except under and in accordance with a permit issued in that behalf. Clause 3 of the 1966 Control order provides for fixation of minimum price of sugarcane payable by manufacturers of sugar to the growers. In determining the minimum price, the Government is required to take into account (a) cost of production of sugarcane, (b) return to the grower from alternative crops and the general trend of prices of agricultural commodities; (c) the availability of sugar to the Consumer at a fair price; (d) the price at which sugar produced from sugarcane is sold by producers of sugar; and (e) the recovery of sugar from sugarcane. Clause 5 of the 1966 Control order provides for payment of additional price. Sub clause (1) of clause 5 provides that in respect of sugarcane purchased, by producers of sugar during each of the four successive years beginning from 1 November 1958, the producer is 743 required to pay an additional price in addition to the minimum price A fixed ' under clause 3(1) of the 1966 Control Order. The additional price is fixed accordance with the provisions of the Schedules to the Order. On determination of the price, the same is required to be intimate, in writing to the producer of sugar, growers, Cooperative Societies of growers or the local growers association. Sub clause (5) of clause 5 of the 1966 Control order provides for an appeal to the Government of India from the decision determining additional price. The relevant provision for purposes of the present appeals is sub. clause (3) of clause 5 of the. 1966 control order. Sub clause (3) is as follows : "If the Central Government is satisfied that during any year a factory has made no profit or has made inadequate profit, that Government, may by order in writing, exempt either wholly or partially, any producer of sugar from payment of the additional price due from him under sub clause (1) in respect of sugarcane purchased for that factory during that year. The appellant in Civil Appeals No. 2070 2074 of 1970 is the factory situate at Hospet manufacturing sugar. The appellant buys sugarcane from growers in the area reserved for the said factory. The respondent is a co operative society of growers of sugarcane who k have supplied sugarcane to the appellant factory. The members of the societies entered into agreement with the appellant factory through the respondent societies for the supply of sugarcane. The societies advanced monies to the grower members for their agricultural operations. The societies are recognised both by the Government of India and the appellant factory for the purpose of the 1966 Control order. The minimum price fixed by the Government of India for the seasons subsequent to 1958 59 was said by the sugarcane growers to be inadequate. The growers felt that the factories manufacturing sugar were making profits from the sale of sugar and that the minimum price fixed by the Government for supply of sugarcane did not bear any rational relation to the market price or to the profits made by the producers of sugar. The growers experienced impact of in crease in the cost of growing sugarcane and the restrictions placed by the Government preventing them from selling sugarcane to persons or at prices of their choice. The growers were also prevented from converting sugarcane to "gur" except in accordance with the terms of a license to be obtained. In partial redress of the hardship caused to the sugarcane growers Parliament introduced clause 3A to the Sugar Cane Control (Additional Powers) Act, 1962 for fixation of additional prices for sugarcane for four successive years commencing 1 November, 1958. The provision was thereafter incorporated in the 1966 Control Order. The relevant Authority under the 1966 Control order on 3 July, 1968 fixed the additional price payable by the appellant to the cane 744 growers for sugarcane supplied during the seasons 1960 61 and 1961 62 at Rs. 4.16 and Rs. 6.09 respectively per metric ton. This was made payable in addition to the payments made by the factory to the growers during the said seasons. No appeal was preferred either by the appellant factory or by the respondent Cooperative Societies under clause 5 of the 1966 Control order. The additional price faced by the Authority thereby became final. The appellant, however, did not pay the additional price. The respondent received copies of communication dated 11 September 1968 sent by the Government of India to the appellant exempting it, from making payment of the aforesaid additional price. It appears that the said order was made pursuant to applications made on behalf of the appellant on or about 11 July 1968 seeking exemption on the ground that the appellant had made inadequate profits. The Government communication dated 11 September 1968 stated that it was satisfied that the profits made by the appellant were inadequate. The Government wholly exempted the appellant from paying the additional price form the season 1961 62 and reduced the additional price for the season 1960 61 from 4.16 to 0.70 NP per metric ton. The respondent challenged the validity of the order of the Government granting exemption wholly or partially to the appellant. The High Court accepted the contention of the respondent on the ground that the impugned order was violative of principles of natural justice, because the Government failed to afford any opportunity to the growers to be heard in the matter. The respondent contended that the power of exemption affected the right of growers to get additional price for sugarcane supplied by them and that the Central Government was required to exercise the power judicially and in conformity with the principles of natural justice. Two questions arise for determination in these appeals. First, whether in view of the 1966 Control order opportunity should have been given to the respondent when the Government wanted to grant exemption, wholly or partially, to the appellant from paying additional price. Second, whether the High Court was right in giving direction to the Government to consider giving of an opportunity to the respondent. The appellant sugar factory contends that the cane growers were not required to be heard when the Government grantee exemption to the factories from payment of additional price. The respondent cane growers contend to the contrary. Clause 5 of the 1966 Control order relates to additional price for sugarcane. Clause 5 (1) of the order speaks of payment of additional price found due in accordance, with the provisions of the Schedule. Clause S(3) of the 1966 Control order speaks of exemption from payment of additional price. Clause 5(4) speaks of appointment by the Central Government of persons for determining the additional price under clause 5(1) of the 1966 Control order. Clause 745 5(5) states that any producer of sugar or grower of sugarcane or growers ' cooperative society who feels aggrieved by any decision of the person or authority referred to in sub clause (4) may appeal to he Central Government. In the background of these provisions, the appellant contends that the power to grant exemption is where the Government is satisfied that in any year a factory has made no profit or has made inadequate profit and the same should be determined from the balance sheet and profit and loss accounts of a company and there is no obligation to hear any party. It is also said by the appellant that the determination of additional price and the exemption from payment of the additional price are separate matters independent of each other. The appellant further contended that right to additional price could not vest in the cane growers until the manner of payment had been decided upon by the Central Government under clause 5(6) of the 1966 Control order, These contentions are unacceptable. The provision for granting exemption is part of the procedure prescribed by clause $ of the 1966 Control order. The power to grant exemption cannot be said to be independent of the provisions under clause 5 of the order. The object of the 1966 Control order is to promote sugar industry and to eliminate unnecessary impediments in the production of sugar. It also ensures a fair deal to the growers of sugarcane. The provisions of the Control order are intended to maintain harmony between the growers of sugarcane and the producers of sugar and to enable both of them to share profits reasonably. Therefore, the power conferred on the Government is required to be exercised having regard to the viewpoints of the growers of sugarcane as well as the producers of sugar. It is necessary to give opportunity to the growers of sugarcane as well as the producers of sugar to be heard when the Government exercises powers under 1966 Control order for determining the additional price and granting exemption from payment of additional price. The grant, of exemption from payment of price affects rights and interests of the growers of sugarcane. The Control order contains elaborate machinery for fixation of additional price having regard to all relevant factors. The additional price fixation authority afforded opportunity to both the growers of sugarcane as well as the producers of sugar to be heard in the determination of the additional price. The subsequent order by the Government granting exemption to the factories for payment of additional price takes away rights which had a accrued in favour of the growers of sugarcane. The manner of payment of additional price under clause S(6) of the 1966 Control order does not affect the right and interest of growers. ln providing for payment of additional price, the additional price fixation authority takes into account the relevant considerations relating to the conditions of sugarcane growers as well as the promotion of the sugar industry during the relevant period. The additional price fixation authority ' also considers the conditions and circumstances relating to the appellant factory in determining the additional 746 price payable. It, is, therefore, necessary for the Government to invite the points of view or objections of the growers on the application made by the factories producing sugar seeking exemption from payment of additional price. It is equally necessary for the Government to hear the growers of sugarcane in order to satisfy itself as to the bona fide and accuracy of the appellant 's claim for exemption. The growers should be given an opportunity to show whether the claim by the appellant for exemption from payment of additional price should or should not be granted. The power to grant exemption to factories from payment of additional price is ultimately connected with the right of sugarcane growers to claim additional price. The situations in which a duty will arise to act judicially according to natural justice cannot be exhaustively enumerated. A duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that additional price would be paid. The factors which power to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanction, if any, involved. It is clear that the purpose and purport of the 1966 Control order, the scheme of having sugarcane growing areas reserved for factories and in particular, the payment of additional price point to the inescapable conclusion that the sugarcane growers are to be heard not only when additional price is filed but also when any exemption is granted to factories from payment of additional price. For these reasons, the judgment of the High Court is affirmed. The appeals are dismissed. Each party will pay and bear its own costs. P.H.P. Appeals dismissed.

The respondent are co operative societies of growers of sugarcane who supplied sugarcane to the appellant which is a sugar manufacturing factory. The use and supply of sugarcane is controlled under the provisions of the . The Sugarcane Control order, 1955 empowers the Government to fix the minimum price payable by the manufacturer of sugar to the grower of sugarcane. In 1962, the Sugarcane Control (Additional Powers) Act 1962 came into existence. Pursuant to the Powers conferred by the 1962 Act, the Central Government amended the 1955 Control order by introducing clause 3A providing for payment of additional price for sugarcane purchased by the producers of sugar. The 1955 Control order was repealed and replaced by the Sugarcane Control order 1966. The respondent are recognised by the Government of India and the appellant for the purpose of 1966 Control order. Under the 1966 order the Government was competent to denote an area where sugarcane is grown as a reserved area for factory. The sugarcane grown in that area is required to be sold to the allotted factory. The Government controls all aspects of the use of sugarcane grown in the reserved area. The 1966 order provides for fixation of minimum price of sugarcane payable by manufacturers of sugar to the growers. In determining the minimum price the Government is required to take into account (i) cost of production of sugarcane, (ii) return to the grower from alternative crops and the general trend of prices Of agricultural commodities; (iii) the availability of sugar to the consumer at a fair price; (iv) the price at which sugar is sold by the producers; and (v) the recovery of sugar from sugarcane. The 1966 Control order further provides for payment of additional price in addition to the minimum price. On determination of the price the same ` is required to be intimated in writing to the producers of sugar, growers Co operative Societies of Growers or the local Growers ' Association. An appeal is provided to the Government of India against the determination of the additional price. Clause 5(3) of the 1966 Control order provides that if the Central Government is satisfied that during any year a factory has made no profit or has made inadequate profit that Government may exempt either wholly or partially any producer of sugar from payment of the additional price. The relevant authority under the 1966 Control order fixed additional price payable by the appellants to the respondent. No appeal was preferred either by the appellant or the respondent. The appellants did not pay the additional price. appellant made applications seeking exemption on the ground that the appellants had made inadequate profits. The Government exempted the appellants from paying whose of the additional price for the year 1961 62 and reduced the additional price for the year 1960 61 without giving any opportunity of being heard to the respondent The respondents challenged the validity of the grant of exemption by filing a writ petition in the High Court. The High Court allowed the said writ petition on the ground that the order of the Central Government was violative of principles of natural justice, since no opportunity was given to the respondents to be heard in the matter. 741 Dismissing the appeal by certificate, ^ HELD: (1) Clause 5(1) provides for the payment of additional price and II clause 5(3) provides for exemption from the payment of additional price. Clause 5(5) provides for filing an appeal to the Central Government by any person feeling aggrieved by the decision of the fixation of additional price. The power to grant exemption cannot be said to be independent of the provisions of clause 5 of tho order. The object of 1966 control order is to promote sugar industry and to eliminate unnecessary impediments in The production of sugar. It also ensures a fair deal to the growers of the sugarcane. The provisions of the control order are intended to maintain harmony between the Growers of sugarcane and the producers of sugar and to enable both of them to share profits reasonably. is necessary to give opportunity to be heard both to the growers of the sugarcane as well as the producers of sugar when the Government exercises powers under 1966 Control order for determining the additional price and granting exemption from payment of additional price. [744 H, 745 A E] (2) The grant of exemption from payment of price affects rights and interests of the growers of sugarcane. The order of exemption takes away rights which had accrued in favour of the growers of sugarcane. It is, therefore necessary for the Government to consider the points of view or objections of the growers on the application made by the factories producing sugar seeking exemption from payment of additional price. [745F, G, 746A] (3) The situations in which a duty will arise to act judicially according to. natural justice cannot be exhaustively enumerated. A duty to act judicially will arise in the exercise of power to deprive a person of legitimate interest or expectation that additional price would be paid. The factors which point to an exercise of power judicially are the nature of interest to be affected. the circumstances in which the power falls to be exercised and the nature of the sanctions, if any, involved. [746 C] (4) It is clear that the purpose and purport of the 1966 Control order point to the inescapable conclusion that the sugarcane growers are to be heard not only when additional price is fixed but also when exemption is granted to factories from payment of additional price. [746 D]

Appeal Nos. 1577 and 1579 of 1971. Appeal from the judgment and Orders dated 23 3 1971 and 22 4 1971 of the Madras High Court in Writ Petitions Nos. 1088/70 and 1316/71. K. Srinivasan, I. Subramaniam and (Mrs.) section Gopalakrish nan for the Appellants. K. Purasaran, Advocate General for the State of Tamil Nadu, A. V. Rangam and (Miss) A. Subhashini for the Respond ents. The Judgment of the Court was delivered by KHANNA, J. These appeals by special leave are against the judgment of Madras High Court whereby, that court re pelled the challenge to the validity of items 7(a) and 7(b) of the Second Schedule to the Madras General Sales Tax Act, 1959 (hereinafter referred to as the State Act). The appellants are dealers in hides and skins. The appellants purchase raw hides and skins locally as well as in the course 'of interState trade and commerce. The raw hides and skins are converted into dressed hides and skins and are sold either locally or. in the course of export. The matter relates to the assessment year 1968 69 and the dispute between the parties arises because of the inclusion in the turnover of the sale and purchase price of some of the above goods. The appellants by means of writ petitions challenged the validity of items 7(a) and 7(b) of the Second Schedule to the State Act. The High Court, as already mentioned, repelled the attack on the validity of those items and dismissed the. writ petitions. Before dealing with the contentions advanced, it may be appropriate to refer to the relevant provisions. Section 4 of the State Act is the charging section in respect of declared goods and reads thus: "Tax in respect of declared goods. Notwithstanding anything contained in section 3, the tax under this Act shall be payable by a dealer on the sale or purchase inside the State of declared goods at the rate and only at the point specified against each in the second schedule of the turnover in such goods in each year, whatever the quantum of turnover in that year. " 1067 It may be mentioned that raw hides and skins as well as dressed hides and skins are declared goods under section 14(if) of the (hereinafter referred to as the Central Act). Section 14(iii) of the Central Act reads as under: " 'It is hereby declared that the following goods are of special importance in inter State trade or commerce: . . . . . . . . . . . . (iii) hides and skins, whether in a raw or dressed state. " Items 7(a) and 7(b) of the Second Schedule to the State Act and read as under: Items 7(a) and 7(b) of the Second Schedule to the State Act read as under : "section No. Description of goods Point of levy Rate of tax 1 2 3 4 7(a) Raw hides and skins At the point of 3 last chase in the State. 7(b) Dressed hides and At the point of 1 1/2 skins (which were 1st sale in the not subjected to State. tax under this Act as raw hides and skins) ,, So far as validity of item 7(a) of the Second Schedule is concerned, the argument of the learned counsel for the appellant is that this would cover also inter State sales and as such is beyond the competence of the State legisla ture. We are unable to accede to this contention as we are of the view that item 7(a) relates only to interState sales and not to inter State sales. This is clear from the lan guage used in the item, especially the words "purchase in the State". Assuming that the language of item 7(a) is ambiguous, it should be so construed as would sustain the constitutional validity of the said item. Considered in this light the occasion. for the levy of tax under the above item would arise only when there is intra State sale and not inter State sale. Regarding from 7(b), the learned counsel for the appel lants has contended that it is violative of clause (a) article 304 of the Constitution. The said clause reads as under: "304. Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law (a) impOse on goods imported from other States or the Union Territories any tax to which. similar foods manufactured or pro duced in that State are subject, so, however, as not to discriminate between goods 18 1338sci/76 1068 so imported and goods so manufactured or produced; and (b) . . . . According to 'the learned counsel, 'there can be three types of sale transactions in respect of dressed hides and skins: (1 ) Dressed hides and skins imported from outside the State of Tamil Nadu. Tanning of the aforesaid (2) Import of raw hides and skins from out side the State of Tamil Nadu and sold within that State; raw hides and skins within the State of Tamil Nadu and the sale of the same within that State as dressed hides and skins; and (3) Purchase of raw hides and skins within the State of Tamil Nadu and sale of the same within that State as dressed hides and skins after tanning those hides and skins. It is urged that in respect of hides and skins covered by the third category, the local sales of dressed hides and skins will not be liable to tax under 'State Act as the purchase of the raw hides and skins has already been sub jected to tax under item 7(a). Regarding hides and skins mentioned at (1) and (2) above, the local sales of dressed hides and skins would be subjected to tax at the rate of 1 1/2 per cent under item 7(b) as there was no levy of tax under the State Act in respect of those hides and skins. Learned counsel accordingly concludes from the above that imported hides and skins are subject to tax when sold as dressed hides and skins at the rate of 11/2 per cent, whereas hides and skins purchased in raw form locally and dressed thereafter are not subject to tax under the State Act when sold as dressed hides and skins. The contention, mother words, is that whereas dressed hides and skins sold locally but which have been made out of imported raw hides and skins are subject to tax, similar sales of dressed hides and skins made out of raw hides and skins which have suffered tax at purchase stage are not subject to tax under item 7(b) of the Second Schedule of the State Act. Item 7(b) is therefore stated to be discriminatory and violative of article 304(a). Reliance in this connection is placed upon two decisions of this Court in the cases of Firm A.T.B. Mehtab Majid & Co. vs The State of Madras & Anr. (1) and A. Hajee Abdul Shukoor & Co. vs The State of Madras.(2) In the case of Mehtab this Court held that the provi sions of rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939 discriminate between hides and skins imported from outside the State and those manufac tured or produced inside the State and therefore they con travene the provisions of article 304(a) of the Constitu tion. Perusal of the facts of that case goes to show that the real grievance of the appellant in that case was that though there was a substantial disparity in the price of raw hides and skins and the price of dressed hides and skins, the same rate of tax was levied (1) 14 S.T.C. 355. (2) 15 S.T.C. 719. 1069 in respect of both types of hides and skins under section 3(1) (b) of the State Act. This is clear from the following observations in that case: "The grievance arises on account of the amount of tax levied being different on ac count of the existence of a substantial dis parity in the price of the raw hides or skins and of those hides or skins after they had been tanned, though the rate is the same under section 3(1) (b) of the Act. If the dealer has purchased the raw. hides or skin in the State, he does not pay on the sale price of the tanned hides or skins he pays on the purchase price only. If the dealer purchases raw hides or skins from outside the State and tane them within the State, he will be liable to pay sales tax o, the sale price of the tanned hides or skins. " In the case of Hajee Abdul Shukoor this Court held that Subsection (1) of section 2 of the Madras General Sales Tax (Special Provisions) Act, 1963 discriminates against imported hides and skins which were sold up to August 1, 1957. The rate of tax on the sale of tanned hides and skins, as would appear from that judgment, was "2 per cent on the purchase price of those hides and skins in the untanned condition, while the rate of tax on the sale of raw hides and skins in the State during 1955 to 1957 is 3 pies per rupee". The Court in this context referred to Mehtab 's case and observed: "In the earlier case, discrimination was brought about on account of sale price of tanned hides and skins to be higher than the sale price of untanned hides and skins, though the rate of tax was the same, while in the present case, the discrimination does not arise on account of difference of the price o.n which the tax is levied as the tax on the tanned hides and skins is levied on the amount for which those hides and skins were last purchased in the untanned condition, but on account of the fact that the rate of tax the sale of tanned hides and skins is higher than that on the sale of untanned hides and skins. The rate of tax on the sale of tanned hides and skins is 2% on the purchase price of these hides and skins in the untanned condition while the rate of tax on the sale of raw hides and skins on the State during 1955 to 1957 is 3 pies per rupee. The difference in tax works out to 7/1600th of a rupee, i.e., a little less than 1/2 naya paise per rupee. Such a discrimination would affect the taxation up to the 1st of August, 1957, when the rate of tax on the sale of raw hides and skins was raised to 2% of the sale price. " None of the circumstances which led this Court to strike down the relevant provisions in the above mentioned two cases exists in the present case. In Mehtab 's case discrimi nation was found to exist because of the fact that tax was being levied at the same rate in respect of both raw hides and skins ' as well as dressed hides and skins, even though 1070 the price of dressed hides and skins was much higher. The position was worse in the vase of Hajee Abdul Shukoor be cause in that case the sales tax was found to have been charged at a higher fate in respect of dressed hides and skins than that on the sale of raw hides and skins in spite of the fact that the price of dressed hides and skins was higher than that of raw hides and skins. The position in the present case is materially different, for here the rate of sales tax for raw hides and skins is 3 per cent, while that for dressed hides and skins is 11/2 r cent. It is plain that the lower rate of tax in the case of dressed hides and skins has been prescribed with a view to offset the difference between the higher price of dressed hides and skins and lower price of raw hides and skins. No mate rial has been brought on the record to show that despite the lower rate of sales tax for dressed_ hides and skins, the imported hides and skins are being subjected to discrimina tion. The onus to show that there would be discrimination between the hides and skins which were purchased locally in the raw form and thereafter tanned and the hides and skins which were imported from other States was upon the appel lant. The appellant, we find, has failed to discharge such onus. Article 304(a) does not prevent levy of tax on goods; what it prohibits is such levy of tax on goods as would result in discrimination between goods imported from other States and similar goods manufactured or produced within the State. The object is to prevent discrimination against imported goods by imposing tax on such goods at a rate higher than that borne by local goods since the differ ence between the two rates would constitute a tariff wall or fiscal barrier and thus impede the free flow of inter State trade and commerce. The question as to when the levy of tax would constitute discrimination would depend upon a variety of factors including the rate of tax and the item of goods in respect of the sale of which it is levied. The scheme of items 7(a) and 7(b) of the Second Schedule to the State Act is that in case of raw hides and skins which are purchased locally in the State, the levy of tax would be at the rate of 3 per cent at the point of last purchase in the State. When those locally purchased raw hides and skins are tanned and are sold locally as dressed hides and skins, no levy would be made on such sales as those hides and skins have already been subjected to local tax at the fate of 3 per cent when they were purchased in raw form. As against that, in the case of hides and skins which have been import ed from other States in raw form and are thereafter tanned and then sold inside the State as dressed hides and skins, the levy of tax is at the rate of 1 1/2 per cent at the point of first sale in the State of the dressed hides and skins. This levy cannot be considered to be discriminatory as it takes into account the higher price of dressed hides and skins compared to the price of raw hides and skins. It also further takes note of the fact that no tax under the State Act has been paid in respect of those hides and skins. The Legislature, it seems, calculated the price of hides and skins in dressed condition to be double the price of such hides and skins 'in raw state, To obviate and prevent any discrimination or differential treatment in the matter of levy of tax, the Legislature therefore prescribed a rate of tax for sale of dressed hides and skins which was half of that levied under item 7(a) in respect of raw hides and skins. 1071 Lastly, it has been argued that dressed hides and skins are a commodity distinct and separate from raw hides and skins and that item 7(b) of the Second Schedule makes a discrimination between 'the sales of locally processed dressed hides and skins and those imported from other States. In this respect we find that it is not the case of the appellants that they import dressed hides and skins from other States and sell them as such in Tamil Nadu. On the contrary, the case of the appellants is that what they _import from other States are only raw hides and skins which are thereafter tanned and sold as dressed hides and skins. In the circumstances, it is not clear as to what grievance the appellants can have on the score that there is discrimi nation between imported dresed hides and skins and the dressed hides and skins produced and manufactured within the State. Apart that it seems to us that even though dressed hides and skins have been treated as separate commodity, there is a clear nexus between hides and skins in raw form and those in dressed form. So far as the Central Act is concerned, both the raw as well as the dressed hides and skins are specified together in clause (iii) of section 14. It has to be borne in mind that it is raw hides and skins which after being subjected to processing or tanning take the shape of dressed hides and skins. Dressed hides and skins cannot, therefore, be considered in isolation and we find no infirm ity in a legislative provision which while levying tax on the sale of dressed hides and skins takes into account the levy of tax in respect of the purchase of raw hides and skins. Looked at in this light there appears to be no warrant for the proposition that preferential treatment has been shown to dressed hides and skins prepared from locally purchased raw hides and skins compared to the treatment accorded to imported hides and skins. We are therefore, of the view that the attack on the validity of item 7(b) of the Second Schedule to the State Act is not well founded. We accordingly dismiss the ap peals, but in the circumstances without costs. V.P.S. Appeal dismissed.

In respect of certain demands of the workers of the appellant company an Industrial Tribunal made its award. When the Special Leave Petition of the appellant was pending before this Court the parties filed consent terms for staying the award. In the meantime the 3rd respondent, a Trade Union, wrote to the employer that all the workers who were members of the 2nd respondent, also a Trade Union, resigned from that union and joined the 3rd respondent. 'The employer accordingly recognised the 3rd respondent as the Trade Union representing/he workers and de recognised the 2nd respondent. Under section 18(1) of the Industrial Disputes Act the em ployer entered into a settlement with the 3rd respondent in substitution of the award pending before this Court. When the 3rd respondent sought to be substituted in place of the 2nd respondent in the Special Leave Petition, the 2nd re spondent resisted the application claiming that it had still the allegiance of 50 workmen of the company. But this Court added the 3rd respondent as a respondent. Since the 2nd respondent claimed to have some workers on its rolls as members and had not .accepted the settlement, this Court passed a preliminary order to the effect that "in view of the fact that admittedly a large number of workmen employed by the appellant have accepted the settlement is it shown by the 2nd respondent union that the said settlement is not valid and binding on its members and whether the settlement is fair and just. " Before the Tribunal the 2nd respondent did not lead any evidence to show 'the actual number of its members. The Tribunal recorded its finding that respondent No. 2 had been able to prove that the settlement was not valid and I bind ing on its members and was incomplete to that extent. It was contended by 'the 2nd respondent that even if the set tlement was binding on the company and the 3rd respondent representing a large majority of workmen, it was not binding .on its members under section 18(1). Dismissing the appeal, HELD: The settlement is fair and just. The award of the Tribunal shall be substituted by the settlement and the settlement shall be the substituted award. [24D] (1) (a) When this Court called for a finding of the Tribunal it was satisfied that if the settlement was fair and just it would allow the parties to be governed by the settlement substituting the award. The Wording of the issue sent to the Tribunal for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were its members. Since a recognised and regis tered union had entered into. a voluntary settlement this Court thought that if the same was found to be. just and fair that could be allowed to be binding on all the work ers even if a very small number of workers were not mem bers of the majority union. [20E F] (b) In the instant case the numerical strength of the members of the 2nd respondent, who are workers of the compa ny, would also have an important bearing as to whether the settlement accepted by the majority of the workmen is to be considered as just and fair. Not a single worker of the company claimed before the Tribunal to be its member and asserted that the settlement was 16 not fair and just. All the workers of the company had accepted the settlement and received the arrears and emolu ments in accordance with the same [20H] (2) (a) The assumption of the Tribunal that the quantum of the membership of the 2nd respondent did not call for a finding at all in view of this Court 's order is incorrect. The Tribunal was conscious that under section 18(1) the settle ment was binding on the company and the 3rd respondent Union. Yet it examined the question whether the workers voluntarily accepted the settlement knowing all the conse quences, which was a wrong approach. [21B C] (b) When a recognised union negotiates with an employer the workers as individuals do not come into the picture. It is not necessary that each individual worker should know the implications of the settlement since a recognised union. which is expected to protect the legitimate interests of labour enters into a settlement in the best interests of labour. [21D] (c) Prima facie this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration. [21E] (d) Having regard to the totality of the terms of the settlement it is difficult to hold that the terms are in any way unfair or unreasonable. An adjudication has to be dis tinguished from a voluntary settlement. By the settlement labour has scored in some aspects and saved all unnecessary expenses in uncertain litigation. The settlement cannot be judged on the touchstone of the principles laid down by this Court for adjudication. [22D; 23D] (3) There may be several factors that influence parties to come to a settlement as a phased endeavour in collective bargaining. Once cordiality is established between the employer and labour in arriving at a settlement there is always a likelihood of further advance in the shape of improved emoluments by voluntary settlement, avoiding fric tion and unhealthy litigation. This is the quintessence of settlement which courts and Tribunals should endeavour to encourage.[23E] (4) It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained, the Court will be slow to hold a settle ment as unfair and unjust. the settlement has to be accepted or rejected as a whole. [24B] In the instant case the 3rd respondent representing the large majority of the workmen has stood by this settlement which is a strong factor difficult to ignore. When a union backed by a large majority of workmen has accepted a settle ment in the course of collective bargaining, this Court would not interfere with the settlement.

Appeal No. 1936 of 1967 From the Judgment and Decree dated the 14th October, 1966 of Andhra Pradesh High Court in Appeal No. 239 of 1961 and Memo of Cross Objections therein arising out of the judgment and decree dated 28th March 1958 of the Subordinate Judge, Srikakulam in Original Suit No. 101 of 1954. M. Natesan, K. Jayaram and R. Chandrasekhar, for the appellant, P. Parmeshwara Rao and T. Satyanarayana, for the respondent. The Judgment of D. G. PALEKAR, and R. section SARKARIA JJ. was delivered by SARKARIA, J. V. R. KRISHNA IYER, J. gave a separate Opinion. 658 SARKARIA J. This appeal by certificate, involves an examination of the, limits, of the respective. jurisdictions of the Settlement Officer/Tribunal and the Civil Court in relation to an inquiry under section 9(1) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short, Abolition Act) and the effect of the Amending Acts .17 and 18 of 1957 and Act 20 of 1960 on cases regarding such an inquiry pending in or decided by the, Civil Courts. It arises out of the following facts : The lands in dispute are situated in village Kadakalla, Taluk Palakonda. On June 13, 1950, the then State Government issued and published a notification under the, Madras Estates (Reduction of Rent) Act, 1947 (for short, Rent Reduction Act) in respect of this village. Subsequently, the Settlement Officer of Srikakulam suo motu made an enquiry as to whether this village was an "estate" or not within the contemplation of section 9(2) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short, called Abolition Act) and by an order, dated September 2, 1950, held that it was not an 'inam estate ' within the meaning of section 2(7) of the Abolition Act. The Settlement Officer further recorded a finding that village Kadakalla became an estate by virtue of the Madras Estates Land (3rd Amendment) Act, 1936. Against that order of the Settlement Officer, the appellants herein carried an appeal to the Estates Abolition Tribunal, Vizianagaram. The 'Tribunal by its order, dated September 16, 1952 dismissed the appeal in limine, with the observation that the decision of the Settlement Officer being in their favour the appellants had no right of appeal, The appellants then instituted O.S. 47 of 1953 in the Court of the Subordinate Judge, Srikakulam against the State Government for a declaration that Kadakalla village was not an 'estate ' under section 3 (2) (d) of 1908 Act, and consequently,_the Rent Reduction Act and the Abolition Act were not applicable to it. The trial court decreed the suit. Aggrieved by the decree, the State preferred an appeal (A.S. 668 of 1954) to the High court of Andhra Pradesh. During the pendency of the said appeal, the appellants instituted Original Suit No. 101 of 1954 (out of which the present appeal has arisen) in the Court of Subordinate Judge Srikakulam, against the respondents herein and others for the recovery of Rs. 15,681/19 as rent or damages for the year 1953 in respect of the lands cultivated by them in the area of village Kadakalla. The suit was resisted by the respondents inter alia on the ground that the suit village was an 'estate ' as defined in section 3(2) (d) of the 1908 Act, and that it had been so held by the Settlement Officer as per his Order dated September 2, 1950. It was further averred that the defendants not being parties to O.S. 47 of 1953, were not bound by the decision in that case. It was added that the question as to whether this village was an estate or not, was pending in the High 'Court of Andhra Pradesh in appeal from the decision in O.S. 47 of 1953, and as such, was sub judice. The jurisdiction of the Subordinate 659 Judge to try the suit (O.S. 101 of 1954) was also questioned. The claim for rent or damages was also resisted. On January 22, 1958, the respondents herein made an application for permission to file an additional written statement for adding the plea that the suit village is an 'inam estate. On March 17, 1958, the trial court dismissed this application holding that the question %ought to be raised, was already covered by Issue No. 1. The trial court framed as many as eleven issues, out of which Issues 1, 6 and 8 were as follows : (1) Whether the suit village is an estate within the meaning of Section 3 (2) (d) of the Madras Estates Land Act ? (6) Whether the plaintiffs are barred and estopped to claim rents in view of prior pattas and rent decrees that were previously obtained ? (8) Whether this Court has no jurisdiction to try the suit? On March 26, 1958, the Advocates for the parties filed a joint memo to the effect that "both parties agree to abide by the final decision whether in the High Court or in the Supreme Court, as the case may be, in the appeal or revision, arising out of O.S. No. 47 of 1953 on the file of this Court on the question whether the, suit village Kadakalla is not an estate under section 3(2)(d) of the Madras Estates Land Act, as amended upto date". As a result of this compromise, it was held that the decision of Issues 1, 6 and 8 would follow the final decision in O.S. 47 of 1953. The remaining Issues were tried and decided on merits. On March 28, 1958, the trial court keeping in view the joint memo filed by the parties and its findings on the other Issues, passed a decree in these terms : "In case it is ultimately decided by the High Court or the Supreme Court, as the case may be, in the appeal or revision arising out of O.S. No. 47 of 1953 on the file of this Court that the suit village Kadakalla is not an estate within the meaning of section 3 (2) (d) of the Estates Land Act, the defendants to pay to the plaintiffs the sum of Rs. 3,000/ with in terest at 5 1/2 per cent per annum from 26 3 1958 with interest thereon and for costs, and that otherwise suit should stand dismissed with costs and that the decree should take effect from the date of the final decision of O.S. No. 47 of 1953 referred to above. " The appeal (A.S. 668 of 1954) arising out of O.S. 47 of 1953 was decided by the High Court on February 12, 1959 whereby the decree of the, trial court declaring that village Kadakalla was not an estate, was confirmed. The application of the State for issuance of a certificate of fitness for appeal to the Supreme Court was dismissed by the High Court. The State did not prefer any Special Leave Peti 660 tion in this Court, with the result, that the High Court 's decision in that case became final and the decree, dated March 28, 1958, of the Subordinate Judge in O.S. 101 of 1954 also became effective. After the disposal of its appeal (A.S. 668 of 1954), the Government issued G.O.R.T. No. 619 Rev. dated June 30, 1966, canceling the earlier notifications in respect of this village notwithstanding the fact that prior to such renotification, section 9 A had been inserted in the Abolition Act by the Amending Act 20 of 1960. Appellants preferred an appeal (A.S. 239 of 1961) against the said decree, dated March 28, 1958, of the Subordinate Judge, to the High Court. Though in the Memorandum of Appeal, it was said. as usual, in general terms, that the "decision of the lower court is against law, weight of evidence and probabilities of the case", and that its decree was "worthless and did not conform to the requirements of section 2(2) of the Civil Procedure Code, yet, in substance, the appeal related only to the extent of the land in the possession of the respondents and the quantum of rent or damages. The appellants ' claim was that the entire suit land, as alleged in the plaint, was under the cultivation of the respondents, and consequently. the lower court was wrong in not decreeing the appellants ' claim for Rs. 15,681/19 as rent or damages, in toto. On April 6. 1962. the respondents filed cross objections contending that the question as to whether Kadakalla village is or is not an 'estate ' as defined in section 3(2)(d) of the 1908 Act, should have been gone into by the trial court and that the rent should have been decreed only in the sum of Rs. 551/29. The High Court posted the appeal and the cross objections for hearing in July, 1965. , At that stage, on July 19, 1965. an application was made by the respondents praying that Exhts. B 196 and B 197, being copies of the order, dated September 2, 1950, of the Settlement Officer and the order dated September 16, 1952, of the Estate Abolition Tribunal, respectively, be read as additional evidence. It was contended that the Amending Act 20 of 1960 had added section 9A to the Abolition Act, as a result of which, the order of the Settlement Officer had acquired 'statutory validity '; and since the appellants did not file an appeal within two months from the commencement of the Amendment Act, the decision of the Settlement Officer became final and binding on all the parties including the appellants. In spite of opposition by the, appellants, the High Court by its order, dated August 23, 1956, allowed this additional evidence and the setting up of the new plea. The appeal and the cross objections were heard together in August. The respondents raised a preliminary objection that the suit itself was incompetent as the Civil Court had no jurisdiction to decide whether the suit village is an estate, or not and, therefore, any decision given by the High Court in appeal (A.S. 668 of 1954) would not bind the parties and the decree in the present suit (O.S. 101 of 1954) on the, basis of the judgment and decree in A.S. 668 661 of 1954. would be without jurisdiction rendering it null and void, .that the Settlement Officer was the competent authority to decide the tenure of the village and his decision had become final in view of the introduction of Section 9A by Act 20 of 1960. The preliminary objection of the respondents was upheld, The contention of the appellants, that since section 9A was inserted by an amendment which came into force on June 23, 1960, it could not affect the compromise decree of the Court passed earlier on March 28. 1958 or the decree of the High Court whereby both the parties agreed to abide, by the decision of the High Court or the Supreme Court in appeal or revision arising out of O.S. 47 of 1953, was rejected in these terms "We see no force in this contention as Section 9A is designed to meet such of the decisions where it has been held that the village is not an inam estate as it stood after the 1936 Act and certainly the respondents can take advantage of change. in statute,, if it is to their benefit and there could be no estoppel against a statute and the rights accrued under a statute. It cannot reasonably be contended that the suit filed by the appellants and the decree obtained have reached any finality as an appeal is only the continuation of the proceedings instituted by the plaintiffs. " In the result. it dismissed the appeal holding that the Civil Court was not the forum for the suit as framed by the appellants and the questions raised in the suit including the claim ' for arrears of rent or damages. were outside the Jurisdiction of the Civil Court. Before dealing with the contentions canvassed, it will be useful to have a clear idea of the relevant statutory provisions, including the expressions "inam village", "inam estate" and "estate" as defined therein. section 3(2)(d) of the Madras Estates Land Act. 1908, as it originally stood, defined "estate" as "any village of which the land revenue alone (i.e. melwaram alone) has been granted in inam to a person not owing the kudiwaram (rights in soil) thereof, provided the grant has been made, confirmed or recognised by the British Government or as separated part of such village. " In this definition, it was not clear whether the inamdar had the melwaram alone or both melwaram and kudiwaram. To remove this obscurity, the Madras Estates Land (Third Amendment) Act, (18 of 1936), substituted for the original sub clause (d) in section 3(2), this new clause "(d) any inam village of which the grant has been made, confirmed or recognised by the Government 'notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees." ' Section 3(2)(d) was further amended by Madras Estates Land Amendment Act II of 1945 with retrospective effect from the date 662 on which the Third Amendment Act 18 of 1936 came into force. It inserted (among others) Explanation 1, to this clause, which reads "Where a grant as an inam is expressed to be of a named village. the area which forms the subject matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of that name would have already been granted on service or other tenure or been reserved for communal purposes." Explanation I makes it clear that (apart from being made, confirmed, or recognised by the Government), an inam grant in order to come within the purview of "estate" under section 3(2) (d) has to be a grant expressly made of a named village or whole Village, and not only of a part of the village or of some defined area in a village. However, it remains and is 'deemed to be a grant of a whole village notwithstanding the exclusion of certain lands already granted on service ,or other tenure or reserved for communal purposes; nor does it cease to be a grant of an entire village merely because the village has been subsequently ' partitioned amongst the grantees or their successors. The interpretation of "estate" has behind it the authority of a bedroll of decisions, including that of this Court in District Board, Tanjore, vs Noor Mohammed(1) Next, in chronological order, is the Madras Estates (Abolition and Conversion into Ryotwari). Act, (XXVI of 1948). Section 1(3) thereof provided that "it applies to all estates as defined in section 3, clause (2) of the Madras Estates Land Act. 1908 (except inam villages which became estates by virtue of the Madras Estates Land (Third Amendment) Act, 1936. The material part of section 2 of this Act says (3) "Estate" means a zamindari or an under tenure or an under tenure of an inam estate. (7) "Inam Estate" means an estate within the meaning of section 3. clause (2) (d), of the Estates Land Act, but does not include an inam village which became an estate by virtue of the Madras Estates Land (Third Amendment) Act, 1936". Thus, to begin with, this Act did not take in its fold post 1936 inam estates. Its operation remained confined to pre 1936 inam estates till the commencement of Act 18 of 1957, which we shall presently notice. Section 9 of the Abolition Act indicates the authorities empowered to determine Inam estate. It says "(1) As soon as may be after the passing of this Act, the Settlement Officer may suo motu and shall, on application enquire and determine whether an inam village in his jurisdiction is an inam estate or not. (1) (1952) 2 M. J 586 (section C.) 663 (2) Before holding the inquiry, the Settlement Officer shall cause to be published in the village in the prescribed manner, a notice requiring all persons claiming an in terest in any land in the village to file before, him statements bearing on the question whether the village is an inam estate or not. (3) The Settlement Officer shall then hear the parties and afford to them a reasonable opportunity of adducing all such evidence either oral or documentary as they may desire to examine all such documents as he has reason to believe are in the possession of the Government and have a bearing on the question before him and give him decision in writing. (4) (a) Any person deeming himself aggrieved by a decision of the Settlement Officer under sub section (3) may within two months from the date of the decision or such further time as the Tribunal may in its discretion allow, appeal to the Tribunal. (b) Where any such appeal is preferred, the Tribunal shall cause to. be Publisher in the village in the prescribed manner a notice requiring all persons who have applied to the Settlement Officer under sub section (1) or filed before him before it, and after giving them a reasonable opportunity of being heard, give its decision. (c) The decision of the Tribunal under this sub section shall be final and not be liable to be questioned in any court of law. (5) No decision of the Settlement Officer under sub section (3) or of the Tribunal under sub section (4) shall be invalid by reason of any defect in the form of the notice referred to in sub section (2) or sub section (4) as the case may be, or the manner of its publication. (6) Every decision of the Tribunal and subject to such decision, every decision of the Settlement Officer under this section shall be binding on all persons claiming an interest in any law in the village. notwithstanding that any such person has not preferred any application or filed any statement or adduced any evidence or appeared or participated in the proceedings before the Settlement Officer or the Tribunal as the case may be. (7) In the absence of evidence to the contrary the Settlement Officer and the Tribunal may Presume that an inam village is an inam estate". Madras Amendment Act 17 of 1951, introduced section 64 A, which runs thus: "64 A.(1) The decision of a Tribunal or Special Tribunal in any proceeding under this Act, or of a Judge of the 664 High Court hearing a case under Section 51 (2), on any matter falling within its or his Jurisdiction shall be binding on the parties thereto, ' and persons claiming under them, in any suit of. proceeding in a Civil Court in so far as such matter is in issue between the parties or persons aforesaid in such suit or proceeding. (2) The decision of a Civil Court (not being ;he Court of Small Causes) on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under this Act before a Tribunal or Special Tribunal, or a Judge of the High Court under section 5 1 (2) in so far as such matter is in issue between the parties or persons aforesaid in such proceeding. " In 1957, two Amending Acts both of which came into force on December 23, 1957, were passed. One was Andhra Pradesh Act 17 of 1957, which substituted the following clause for clause (a) in subsection (4) of section 9 of the Abolition Act, 1948 : (a) (i) Against a decision of the Settlement Officer under subsection (3), the Government may, within one year from the date of the decision or if such decision was given before the commencement of the Madras Estates (Abolition and Conversion into Ryotwari) (Andhra Pradesh Amendment) Act, 1957, within one year from such commencement and any persons aggrieved by such decision may within two months from the date of the decision or such further time as the Tribunal may in its discretion allow, appeal to the Tribunal. (ii) If,, before the commencement of the Madras Estates (Abolition and Conversion into Ryotwari) (Andhra Pradesh Amendment) Act, 1957, any order has been passed by the Government against a decision of the Settlement Officer on the ground that the Government were not competent to file an appeal under this clause or that such appeal was time barred, the Tribunal shall on an application filed by the Government within one year from the commencement of the Amendment Act aforesaid, vacate the order already passed by it and pass a fresh order on merits. " In clause (b) of s.9(4) of the Abolition Act, after the words where such appeal is preferred", the words "by an aggrieved person, the Tribunal shall give notice to the Government and in the case of all appeals whether by the ;Government or by an aggrieved person" were inserted. The second Amending Act was Andhra Pradesh Act 18 of 1957, section 2 of which substituted the following section for sub section (3) of section 1 of the Abolition Act 665 "It applies to all estates as defined in section 3, clause (2), of the Madras Estates Land Act, 1908, (Madras Act 1 of 1908). " This Act further substituted the following clause for clause (7) of s.2 of the principal Act: "In an estate" means an estate within the meaning of section 3, clause (2) (d) of the Madras Estates Land Act, 1908 (Madras Act 1 of 1908)". In s.9 of the principal Act, after the words "Inam village" or "the village", wherever they occurred the words "or hamlet or khandriga granted as inam" were inserted. It will be seen that Act 18 of 1957, made the Abolition Act applicable even to villages that became estates under the 1936 Amendment of the 1908 Act. For the purpose of the Abolition Act that distinction between pre 1936 and post 1936 inam grants disappeared, and this Act became applicable to all estates falling under the definition ill section 3 (2) of the 1908 Act. Andhra Pradesh Act No. 20 of 1960, which came into force on the 23rd of June, 1960 inserted in the Abolition Act, s.9 A, which, provides : " Inquiry under section 9 not necessary in certain cases If before the commencement of the Madras Estates (Abolition and Conversion into Ryotwari) (Andhra Pradesh Second Amendment) Act, 1957 (Andhra Pradesh Act XVIII of 1957) (any decision was given under section 9 in respect of any village that it was not an inam estate as it stood defined before such commencement, and that decision was based on the finding that the inam village became an estate by virtue of the Madras Estates Land ( 'third Amendment) Act, 1936 (Madras Act XVIII of 1936) then: (a) if the decision based on the finding aforesaid was given by the Tribunal under sub section(4) of section 9, no fresh inquiry under that section shall be necessary for taking any, proceedings tinder this Act on the basis of that finding; and (b) if the decision based on the finding aforesaid was given by the Settlement Officer, and no appeal was filed to the Tribunal, the Government or any person aggrieved, may appeal to the Tribunal against the decision and finding within two months from the com mencement of the Madras Estates (Abolition and ment). Act, 1960 and if no such appeal is filed, the finding of the Settlement Officer shall be final and no fresh inquiry shall be necessary for taking any proceedings under this Act on the basis of that finding. " 666 The same Act 20 of 1960 introduced this section in the present Act : "12(1) No notification issued under sub section (4) of section 1 of the principal Act during the period between the 23rd December, 1957, and the commencement of this Act, on the basis of finding recorded in any decision given before the said date by the Settlement Officer, or the Tribunal under section 9 of the principal Act (such finding being to the effect that the inam village become an estate by virtue of the Madras Estates Land (Third Amendment) Act, 1936 (Madras Act XVIII of 1936), shall be deemed to be invalid or ever .to have been invalid merely on the ground (a) that before issuing the notification no fresh inquiry was made by the Settlement Officer under the said section 9 after the said date; or (b) that the landholder or other person aggrieved had No. occasion to appeal to the Tribunal against the decision and finding of the Settlement Officer; and all such notifications issued and actions taken in pursuance thereof during the period aforesaid shall be deemed always to have been validly issued and taken in accordance with law. (2) No suit or other proceeding challenging the validity of any such notification or action or for any relief on the ground that such notification or action was not validly issued or taken shall be maintained or conti nued in any court, and no court shall enforce any decree or other holding any such notification or action to be invalid or grant any relief to any person. " The first question that falls for decision is : To what extent and in what circumstances the Civil Court is competent in a suit to go into the question whether a particular village is an "estate"? By virtue of section 9 of the Code of Civil Procedure, the Civil Courts 'have jurisdiction to decide all suits of a civil nature excepting those of which their cognizance,, is either expressly or impliedly barred. The exclusion of the civil court 's jurisdiction, therefore, is not to be readily assumed unless the relevant statute expressly or by inevitable implication does so. The question thus further resolves itself into the :issue : How far s.9(1) of the Abolition Act confers exclusive jurisdiction on the Settlement Officer to determine inam estates? This matter is not res Integra. In Addenki Tiruvenkata Thata Desika Charyulu vs State of Andhra Pradesh, (1) this Court held that there is an express bar to the jurisdiction of the civil court to adjudicate upon the question, whether "any inam village" is an "inam 1. A.I.R. 1964 section C. 807 667 estate" or not, and that ,to the extent of the question stated in section 9(1), the jurisdiction of the Settlement Officer and of the Tribunal are exclusive ". It was pertinently added that this exclusion of the jurisdiction of the civil court would be subject to two limitations. First, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which, the, powers of statutory tribunals are exclusive. The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute. and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors. Applying the above principles, the Court clarified the limits of the respective jurisdictions of the Settlement Officer/Tribunal and the civil. court, thus : the object of the Act is to abolish only "inam estates". This determination involves two distinct matters in view of the circumstances that every "inam village" is not necessarily "an inam estate" viz., (1) whether a particular property is or is not an "inam village" and (2) whether such a village is "an inam estate" within the definition of section 2(7). The first of these questions whether the grant is of an "inam village" is referred to in section 9(1) itself as some extrinsic fact which must preexist before the Settlement Officer can embark on the enquiry contemplated by that provision and the Abolition Act as it stood at the date relevant to this appeal, makes no provision for this being the subject of enquiry by the Settlement Officer . Where therefore persons appearing in opposition to the proceedings initiated before the Settlement Officer under section 9 question the character of the property as not falling within the description of an "inam village", he has of necessity to decide the Issue, for until he holds that this condition is satisfied he cannot enter on the further enquiry which is the one which by section 9(1) of the Act he is directed to conduct. On the terms of section 9 (1), the property in question being an "inam village" is assumed as a fact on the existence of which the competency of the Settlement Officer to determine the matter within his jurisdiction rests and as there are no words in the statute empowering him to decide finally the former be cannot confer jurisdiction on himself by a wrong decision on this preliminary condition to his jurisdiction. Any determination by him of this question, therefore, is (subject to the result of an appeal to the Tribunal) binding on the parties only for the purposes of the proceedings under the Act, but no further. The correctness of that finding may be questioned in any subsequent legal proceeding in the ordinary courts of the land where the question might arise for decision. " 668 Now let us approach the problem in hand in the light of the principles enunciated in Desika Charyulu 's case (supra). Mr. Natesan, learned Counsel for the appellants, contends that in the instant case, the decision, dated September 2, 1950, of the Settlement Officer fell within the second category of cases pointed out in Desika Charyulu 's case (supra) which could be challenged in the civil court, because, firstly, Kadakalla village was not an "inam village" as the, ,grant was not of the whole village, and the Settlement Officer had grievously erred in assuming it to be so; secondly, as soon as the Settlement Officer reached the finding that the village was not an "inam estate" within the then extant definition in section 2(7) of the Abolition Act, he became functus officio and had no further jurisdiction under section 9(1) to proceed with the enquiry and hold that it was an estate" under section 3(2)(d) of the Estates Land Act, 1908. In reply, Mr. P. Rameshwara Rao, learned Counsel for the respondents, maintains that under section 9(1), the Settlement Officer had the jurisdiction to determine all the three facts, namely : (1) whether Kadakalla was an 'inam village '; (2) if so, whether it was a pre 1936 'inam estate ' falling under the definition in section 2(7) of the Abolition Act, or (3) a post 1936 'inam estate ' under section 3(2)(d), of the 1908 Act. The decision of the Settlement Officer, according to the learned Counsel, as to fact No. (1) was conclusive and operated as res judicata under section 64 A, of the Abolition Act, between the parties, be,cause before the Settlement Officer, it was no body 's case that Kadakalla was not an "inam village". In these circumstances, the decision of the Settlement Officer not being in excess of his jurisdiction, could not be questioned in a civil court. The argument, though seemingly attractive, does not stand a close examination and we are unable to accept it. On the other hand, we find force in what has been contended from the appellants ' side. Under the Abolition Act, as it stood at the material date, the enquiry by the Settlement Officer could legitimately be confined to the ascertainment of only two issues of fact, viz.(1) Was Kadakalla an "inam village" ? (2) if so, was it an 'inam estate ' as defined in section 2 (7) of the Abolition Act? Once issue (2) was determined, the enquiry would be complete and the limits of his exclusive jurisdiction ,circumscribed by section 9(1) reached; and, if he went beyond those limits to investigate and determine further something which was unnecessary or merely incidental or remotely related to issue (2), then such incidental or unnecessary determination, could be questioned in the civil court. Again, any finding recorded by the Settlement Officer regarding the property in question being an 'inam village ' or not, is not final or conclusive it being a finding of a jurisdictional fact, only, the preexistence of which is a sine qua non to the exercise of his exclusive jurisdiction by the Settlement Officer. Investigation as to the existence or otherwise of this preliminary fact is done by the Settlement Officer to ascertain whether or not he has jurisdiction to determine that the particular property is an 'inam estate '. If upon such investigation, he 669 finds that the property is 'an 'inam village ', the foundation for the exercise of his exclusive jurisdiction is laid, and he can then, and then only, embark upon the enquiry envisaged by the statute. If such investigation reveals that the property is not an 'inam village ', the con dition precedent to the exercise of such jurisdiction by him, would be lacking. The Legislature must have visualised that under the cloak of an erroneous finding as to the existence or nonexistence of this prerequisite, the Settlement Officer may illegally clutch at jurisdiction not conferred on him, or, refuse to exercise jurisdiction vesting in him. Perhaps, that is why the statute does not leave the final determination of this preliminary fact to the Settlement Officer/Tribunal and his erroneous finding on that fact is liable to be question in civil court. The contention of Mr. Rao that before the Settlement Officer the fact of Kadakalla village being an "inam village" was not disputed, does not appear to be home out by the record. A perusal of the. Settlement Officer 's order dated September 2, 1950, would show that it was contended before him on behalf of the Inamdars "that there was no village at all at the time of grant" and "that there were more than one grant as Inam in the village". Assuming for the sake of argument that the appellants had failed to contest or adduce proof before the Settlement Officer that Kadakalla was not an 'inam village ', then also, we fail to appreciate how, on Principle that would make the case any different so as to preclude the appellants from reagitating that matter in the civil court. Once it is held that determination of this fact is not a matter of the exclusive jurisdiction of the Settlement Officer, the appellants cannot be debarred on the basis of any doctrine, of res judicata from getting the matter fully and finally adjudicated by a court of competent jurisdiction. In view of the above discussion, it is clear that under the law in force at the material time, a suit for a declaration that the decision of the Settlement Officer/Tribunal holding certain properties to be an 'estate ' under section 3 (2) (a) of the, 1908 Act was void, was maintainable on the ground that the suit property was not an 'inam village '. There can be no dispute that Suit No. 47 of 1953 is of that category and falls well nigh within the ratio of Gosukonda Venkata. Narasayya vs State of Madras,(1) which was approved by this Court in Desika Charyulu 's case (supra). The main contention of the appellants in this suit was that the village Kadakalla was not in 'inam village ' as the grant did not comprise the whole village and consequently, it is not an 'estate ' within the definition in s.3 (2) (d) of the 1908 Act. The trial court accepted this contention and decreed the suit. The High Court confirmed that decision, holding that when the grant was made (in 1774), it was neither of the whole village nor of a named village within the meaning of Explanation 1 to s.3 (2) (d) of the 1908 Act. In Original Suit 101 of 1954, also, the relief of rent or damages (1) A. I. R. 670 is conditional and dependent upon and linked up (by an agreement between the parties) with the determination of the main question involved in the former suit. We have, therefore, no hesitation in coming to the conclusion that the common question in both these suits regarding Kadakalla being an estate or not, on the ground that it was not an inam village, was within the competence of the civil court. Further point to be considered is : whether the jurisdiction of the civil courts to proceed with and determine the aforesaid suits 'was, in any way, affected by the enactment of Amending Acts 17 and 18 of 1957. For reasons that follow, the answer to this question, in our opinion, must be in the negative. It is well settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights (Maxwell on Interpretation, 12th Edn. 220). That is to say, in the absence of anything in the Act, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed. Let us, therefore, see whether there is anything in the Amending Acts 17 and 18 of 1957 which in clear language gives them a retrospective effect. A plain reading of these Amending Acts would show that there is nothing of this kind in them, which, expressly or by necessary intendment, affects pending actions. The only major change introduced by Act 17 of 1957 was that it gave to the Government a right to file an appeal to the Tribunal, if it felt aggrieved against the decision of Settlement Officer under sub section (3) of s.9 of the Abolition Act, within one year from the date of the decision, or, if such decision was rendered before December 23, 1957 i.e. the commencement of Act 17 of 1957, within one year from such date. It further entitled the Government to get its appeal, if any, dismissed, as incompetent, by the Tribunal restored within one year of the commencement of the Amending Act. Likewise, the only effect of the Amending Act 18 of 1957 was that it enlarged the definition of 'inam estate ' for the purpose of Abolition Act by taking in post 1936 Inams. There is no non obstante clause in. these Amending Acts of 1957 with reference to pending or closed civil actions. Nor is there anything in the scheme, setting or provisions of these Amending Acts which fundamentally alters the conditions on which such actions were founded. No back date or dates of their commencement have been specified in the body of these statutes as was done in Madras Estates Land Amendment Act 11 of 1945 which was expressly enforced with effect from the date of the commencement of Act 18 of 1936. These Amending Acts were published in the Government Gazette on December 23, 1957, and will therefore be deemed to have come into force 671 from that date only. The provisions, of these Amending Statutes are not merely Procedural but affect substantive rights,, and impose. new obligation ' and disabilities. In them, the Legislature has not spoken in clear language that they would unsettle, settled claims or take away or abridge rights already accrued, or cause abatement of pending actions. These Amending Acts, 'therefore, can be construed as having a prospective operation only. They cannot be interpreted as taking away the rights of the litigants in Suits O.S. 47 of 1953 and O.S. 101 of 1954 (which were at the commencement of these Amendments pending at the appellate or original stage) to have their respective claims determined in, accordance with the law in force at the time of the institution of the actions. Before we come to the Amending Act 20 of 1960, it is necessary to examine whether the decrees in O.S. 47 of 1953 and O.S. 101 of 1954 had attained finality. And, if so, when and to what extent ? So far as the decree of the High Court (in A.S. 668 of 1954 arising out of O.S. 47 of 1953) is concerned, there is no dispute that it had become final and conclusive between the parti es to that action, namely, the State Government and the present appellants on February 12, 1954. Learned Counsel are, however, not agreed as to whether the decree, dated March 28, 1958, passed by the civil court in Suit No. 101 of 1954 had also assumed such a character. Mr. Natesan. vehemently contended that this decree in so far as it, pursuant to the agreement between the parties, incorporated in it, the final determination of the High Court in A.S. 668 of 1954 that Kadakalla was not an estate was a consent decree, and as such, was final and non appealable in view of section 96(3) of the Code of Civil Pro cedure. On the respondents ' side Mr. Rao argued that no part of this decree was final and conclusive between the parties on the ground of estoppel or otherwise, because (a) the appellants had in grounds 1 and 2 of the Memo of Appeal presented in the High Court, challenged the decree in its entirety; (b) the joint memo filed by the Advocates, concerned legal issues, including that of jurisdiction. and as such the agreement was not lawful that would bind the parties; (c) the respondents were not a party to the proceedings in A. section 668 of 1954 and (d) the arrangement arrived at by the Advocates, being dependent on the happening of a future event, did not amount to a lawful adjustment of the claim, and the decree based on it, was inchoate. None of the points urged by Mr. Rao appears to hold water. The allegations in grounds 1 and 2 of the Memo of Appeal (which have been referred to in a foregoing part of this judgment) are too vague and general to amount to an averment. They appear to have been introduced just as a matter of form and habit by the draftsman. From the Memo of Appeal, read as a whole, it is clear that, in substance and truth,, the challenge was directed only against that part of 3 L748SCI/74 672 the decree which fixed the quantum of rent and damages. In fact, before the, High Court it was vigorously contended on behalf of the ,appellants that , part of the decree, which, in effect, declared that the village is not an estate ' under section 3 (2) (d), having been imported with the consent of the parties, was not appealable under section 96(3), Code of Civil Proce dure, and, in reality, had not been appealed against. In support of this contention, reliance was placed on the, Division Bench ,decision in Srinivasa vs Tathachariar(1). The High Court did not discuss or distinguish this decision. Nor did it say in so many words that the whole of the decree including the part based on compromise, was under challenge in the appeal. It rejeited the contention with the remark that it had already "observed that the appeal is but a continuation of the, suit and there could be no estoppel against a statute". Perhaps, it was assumed that in the Memo of Appeal, every bit of the decree was being challenged by the appellants. We think, with all respect, that such an assumption was contrary to the well established principle that in construing a pleading or a like petition, in this ,country, the court should not look merely to its form, or pick out from it isolated words or sentences; it must read the petition as a whole, gather the real intention of the party and reach at the substance of the matter. Thus construed, the Memo of Appeal in this, case could not be said to contain a challenge to that part of the decree which was in terms of the compromise agreement between the parties. Order 23, Rule 3, Code of Civil Procedure, not only permits a partial compromise and adjustment of a suit by a lawful agreement, but further gives a mandate to the court to record it and pass a decree, in terms of such compromise or adjustment in so far as it relates to the suit. If the compromise agreement was lawful and, as we shall presently discuss, it was so the decree to the extent it was a consent decree, was not appealable,because of the express bar in section 96,(3) of the Code. Next point is, whether this agreement was lawful ? We have already discussed that the Amending Acts of 1957 did not affect pending actions in which a declaration is sought that a particular property is not an estate, on the ground that it is not an 'inam village '. This issue which was intertwined with that of jurisdiction, was very largely a question of fact. It follows therefrom that in any such suit, the parties in order to avoid unnecessary expense and botheration, could legitimately make an agreement to abide by a determination on the same point in issue in another pending action in an advanced stage. There was nothing unlawful and improper in such an arrangement particularly when the interests at the respondents were sufficiently safeguarded by the State which was hotly controverting the decree of the trial court regarding Kadakalla being an estate. By no stretch of reasoning it could be said that this agreement was collusive or was an attempt to contract out of the statute. There can be no doubt that as soon as the Court accepted the compromise agreement between the parties, and, acting on it, passed a (1) A. I. R. 673 decree in terms thereof, the compromise, to the extent of the matter covered by it, was complete. Nothing further remained to be done by the parties in pursuance of that agreement. The decree had become absolute and immediately executable on February 12, 1959 when the High Court in A.S. 668 of 1954 finally decided that Kadakalla was not an estate. Be that as it may,, the bar to an appeal against a consent decree, in sub section (3) of section 96 of the Code is based on the broad principle of estoppel. It presupposes that the parties to an action can, expressly or by implication, waive or forego their right of appeal by any lawful ,agreement or compromise, or even by conduct. Therefore, as soon as the parties made the agreement to abide by the determination in the ,appeal (A.S. 668) and induced the court to pass a decree in terms of that agreement, the principle of estoppel underlying 196(3) became operative and the decree to the extent it was in terms of that agreement, became final and binding between the parties. And it was as effective in creating an estoppel between the parties as a judgment on ,contest. Thus, the determination in A.S. 668 that Kadakalla was not an 'estate ' became as much binding on the respondents, as on the parties in that appeal. In the view we take, we can derive support from the ratio of this Court 's decision in Raja Sri Sailendra Narayan Bhanja Deo vs State of Orissa(1). In that case, there was a compromise decree between the predecessors in title of the appellant therein on the one hand, and the Secretary of State on the other, that Kanika Raj was an 'estate ' as defined by Orissa Estates Abolition Act of 1951. This Court held that the appellant was estopped by the compromise decree from denying that the Raj was not such an 'estate '. In the light of the above discussion, we would hold that part of the decree in Suit No. 101 of 1954 which was in terms of the compromise agreement had become, final between the parties, and, the appeal from that decree could not be said to be a continuation of that part of the claim which had been settled by agreement. The combined effect of the two integrated decrees in Suit No. 47 and Suit No. 101, in so far as they, declared that Kadakalla, not being an. 'inam village, was not an estate under section 3(2)(d) of the 1908 Act, was to completely vacate and render non est the decision dated September 2, 1950 of the Settlement Officer. Against the above background, we have to consider whether the Amending Act 20 of 1960 operates retrospectively to nullify final decrees of civil courts which had before its commencement, declared such decisions of Settlement Officer totally void and nonexistent ? Does the 'Act expressly or by necessary intendment bring into life again all such dead decisions of the Settlement Officer ? In approaching these questions, two fundamental principles of interpretation have to be kept in view. The first is, that if the Legislature, (1) ; 674 acting within its legislative competence, wants to neutralise or reopen a court 's decision, "it is not sufficient" to use the words of Hidaytullah C.J. in Shri Prithvi Cotton Mills Ltd. vs Broach Borough Municipality(1) "to declare merely that the decision of the Court shall not bind, for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court 's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. " Thus, the first test to be applied is, whether the Amending Act 20 of 1960 has so radically altered the conditions on which the said decrees proceed, that they would not have been passed in the altered circumstances ? The point is that the law which was the basis of the decision must be altered and then, the foundation failing, the binding value of the decision fails when the non obstante clause is superadded. As shall be presently seen, by this test, the answer to this question must be in the negative. The second principle to recall the words of Bowen L.J. in Reid vs Reid(2) is, that in construing a statute or "a section in a statute which is to a certain extent retrospective, we ought nevertheless to bear in mind the maxim (that is, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested eights as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the, general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant. " With the above principle in mind, let us now examine the provisions of the Amending Act 20 of 1960. In this Act, also no back date for its commencement has been mentioned. It will, therefore, be deemed to have commenced on June 23, 1960, which is the date on which it was published in the Govt. Gazette. It does not say (excepting in section 12 inserted by it which obviously does not apply to the facts of this case) that the amendment would have effect and would be deemed always to have had effect from the inception of the parent Act, nor does it use any equivalent expressions or similar words which are usually found in Amending Acts intended to have retrospective operation without any limit. ' Section 9 A inserted by this Amending Act in the parent Act, does not begin with any non obstante cause, whatever having reference to decrees or orders of civil courts. In terms, it concern,s itself only with a certain category of decisions given before the commencement of Act 18 of 1957 by the Settlement Officer/Tribunal, under section 9 of the Abolition Act. Such decisions are those which were based on the finding that a particular Inam village had become estateby virtue of the. Madras Estates Land (Third Amendment) Act, 1936. The Order, dated September 2, 1950, of the Settlement Officer in the instant case, was a decision of this category, inasmuch as he held that. Kadakalla was not an 'inam estate ' because it was a post 1936 (1) L19701 1 S.C.R. 388. (2) at 408. 675 inam, and as such, was not covered by the definition in section 2 (7) of the Abolition Act. But, before the commencement of the Amending Act, 1960, this decision as a result of the High Court 's decree, stood finally vacated. It is not at all clear from the language of this Amending Act, that the intention was to revive even such legally non existent decisions of the Settlement Officer. On The contrary, definite indications ire available that the section was not intended to have unlimited retrospective operation. The first of such indications is available from the marginal heading of section 9 A, itself " which is to the effect : "Inquiry under section 9. not necessary in certain cases", The heading discloses the purpose as well as the extent of the new provision. it envisages only such cases in which the decision of the Settlement Officer was not successfully challenged in the civil court on the ground that the parti cular property was not an inam village; for, it would be pointless, only in such cases, to hold a further inquiry into the matter. The second hint of legislative intent is available in section 64 A (2) which has not been touched by the Amending Act. Section 64 A(2) provides that the decision of the civil court on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under the Abolition Act before the Tribunal or the Special Tribunal. If the intention was to exclude the Jurisdiction of the civil court altogether, s.64 A(2) would either have been deleted or drastically amended so as to alter the basic conditions with effect from the very inception of the parent Act, that in the altered Conditions those decisions could not have been rendered by the civil courts. For instance, it could say that the decision of the Settlement Officer on the question whether a particular property is an 'inam village ' or not, would be conclusive and final and would always be deemed to have been so." In view, of what has been said above, we are of the opinion that s.9 A takes in its retrospective sweep only those decisions of the settlement Officer or the Tribunal which at the commencement of the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non est by a decree of a competent court. The decision dated September 2, 1950 of the Settlement Officer in the instant case, was not such a decision. It had ceased to exist as 'a result of the inter linked decree in O.S. 47 of 1953 and O.S. 101 of 1954, passed before the enactment of this Amending Act. The Amending Act of 1960, therefore, does not in any way, affect the finality or the binding effect. of those decrees. Quite, a number of authorities were cited by the learned Counsel on both sides, but it is not necessary to notice all of them because in lost of them the facts were materially different. Only one of those cases in which the interpretation of sections 9 A and 64 A was involved reserves to be noticed. It is reported in Yeliseth Satyanarayana vs Aditha agannadharab and ors.(1) (1) [1966] I.L.R. A.P. 729. 676 The writ petitioners in that case had challenged the order of the Estates Abolition Tribunal which had held (1) that the previous order of the Civil Court holding the suit lands to be an estate, by virtue of the Amending Act XVIII of 1936 to the Madras Estates Land Act, 1908, was not res judicata under section 64 A of the Abolition Act and (2) that the land holder had a right of appeal under section 9 A of the said Act, and that the inam was not of the whole village and, conse quently, was not an 'estate '. The first question for consideration by the High Court was, whether the appeal filed by the land holder before the Estates Abolition Tribunal was maintainable, notwithstanding the fact that such an appeal was not entertained earlier by the Tribunal on the ground of its being incompetent. On the construction of section 9 A(b), this question was answered in the affirmative. The second question before the High Court was, whether the previous judgments of the Civil Court were res judicata under section 64 A. The Bench analysed and explained the circumstances in which the first or the second sub s of section 64 A operates. It will be useful to extract those observations here "The bar under section 64 A is applicable in two sets of circumstances; one, where the decision was of a Tribunal or Special Tribunal or of a Judge of the High Court hearing a case under section 51; (2) the other, where it is a decision of a Civil Court on any matter falling within its jurisdiction. The decisions mentioned in the first category are binding on the Civil Courts and the decisions mentioned in the second category are binding on the Tribunal or Special Tribunal or a Judge of the High Court when he hears a case under section 51 (2). In so far as the facts of this case are concerned, it is sub section (2) of section 64 A that is applicable." On the second question, the learned Judges held that the previous decisions of the Civil Court could not operate as res judicata because the issue as to whether the suit property was an estate under the Amending Act of 1957, was not under contest. Both the parties as a matter of concession, had conceded that fact and the Government. was not a party to the proceeding. In these peculiar circum stances, it was held that the 'concession or assumption made in the previous proceedings, was not a 'decision ' within the meaning of section 64 A(2). In the case before us, as already observed, the State had contested this issue regarding Kadakalla being an estate or not, right upto the High Court. It would, therefore, operate as res judicata between the State and the land owners. The same binding effect is produced by estoppel raised by the consent decree in the suit out of which the present appeal has arisen. Thus, this ruling does not, advance the case of the respondents. For all the foregoing reasons, we allow this appeal, reverse the judgment of the High Court and send the case back to it for decision 677 on the remaining issues in accordance with law. We make no orders as to the costs of this Court. KRISHNA IYER, J. The judgment just delivered has my concurrence. But a certain juristic thought expressed therein and consecrated in an authoritative passage which has fallen from Bowen, L.J., in Reid vs Reid(1) persuades me to break my silence not so much in dissent but in explanatory divagation. The proposition there expressed and here followed relates to the presumption against vested rights being affected by subsequent legislation. Certainly this legal creed of Anglo Indian vintage has the support of learned pronouncements, English and Indian. But when we apply it in all its sternness and sweep, we err. Precedents should not be petrified nor judicial dicta divorced from the socioeconomic mores of the age. Judges are not prophets and only interpret laws in the light of the contemporary ethos. To regard them otherwise is unscientific. My thesis is that while applying the policy of statutory construction we should not forget the conditions and concepts which moved the judges whose rulings are cited, nor be obsessed by respect at the expense of reason. Justice Gardozo(2) has in felicitous words made the same point : "There should be greater readiness to abandon an untenable position . when in its origin it was the product of institutions or conditions which have gained a new signifi cance or development with the progress of the years. In such circumstances, the words of Wheeler, J., in Dwy vs Connecticut Co., , 99,. express the tone and temper in which problems should be met : "That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, Ind no considerable property rights have be come vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary, Change of this character should not be left to the,, legislature. " If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie , in helpless submission, the hands of their successors. " The Indian Constitution, adopting the fighting faith of equal_protection of the laws to all citizens, necessarily contemplates a new jurisprudence where vested rights may be, and often times are, extensively interfered with for achieving the founding fathers ' social goals. (1) [1886] 31 Ch. D.402;408. (2) Cardozo The Nature of Judicial Process; PP. 151 52. 678 Legislative exercises directed towards distributive justice, as in the present case, cannot be considered in the light of a dated value system, though sanctified by bygone decisions of Courts. However, in the present case, let me hasten to repeat, the Act in question is clear about its intent and its application gives little difficulty. I have said these words only to enter a mild caveat, on the lines indicated, so as to obviate future misapprehensions about the,rule,of interpretation not to add a new element of judicial sub jectvism. Speaking generally, courts have to be anchored to well known canons of statutory construction and if they are out of time with the law makers ' meaning and purpose the legitimate means of setting things right is to enact a new Interpretation Act. P.B.R. Appeal allowed.

The appellant took a lease of shop premises from the respondent. From the time of letting, a chemist 's business was carried on in the shop by S with the occasional help of the appellant. S and the appellant were living as husband and wife to the knowledge of the respondent. The respondent applied under section 14 of the Delhi Rent Control Act, 1958, for eviction of the appellant on the ground that she had sublet the premises toS. The Rent Controller and the Tribunal on appeal held that the appellant and section were living together as husband and wife, and that therefore there wasno question of any subletting by the appellant. In second appeal, holding that two substantial questions of law were involved namely, one relatingto the status of the appellant as the wife of S, and the other, whether sub lettingwas established, the High Court concluded that there was subletting in favour oOf section Allowing the appeal to this Court, HELD : (1) Under section 39 (2) of the Act the High. Court could interfere in second appeal only if there was a substantial question of law. On the question whether the appellant was legally married no finding was necessary in the eviction suit. It was sufficient for the rent court to proceed on the finding that the appellant and S were living together as husband and wife, whether they were legally married or not. [528C D, E F] (2)The question whether there was subletting is not a mixed question of law and fact. In a mixed question of law and fact the ultimate conclusion has to be drawn by applying principles of law to basic findings, but in the determination of a question of fact no application of any principle of law is required in finding either the basic facts or in arriving at the ultimate conclusion. The question to be determined in the circumstances of this case was whether it was likely that the appellant had sublet the premises to section The negative answer given by the rent court is merely the factual common sense inference which did not call for the application of any principle of law. [528F G; 529A B] Meenakshi Mills, Madurai vs The Commissioner of Income tax, Madras, ; , followed. (3)When eviction is sought on the ground of subletting the onus of proving subletting is on the landlord. If the landlord prima facie shows that the occupant was in the exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence. But in the present case the respondent produced no evidence to show subletting in spite of the appellant 's denial in the written statement. [527C D] Associated Hotels of India Ltd. Delhi vs section B. Sardar Ranjit Singh, ; , followed. (4)Under section 14 (4) premises could be deemed to have been sub let by the tenant only when the Controller is satisfied that some person is let into possession ostensibly as a partner in business but really for the purposes of subletting. This provision has no application to the facts and circumstances of the present case. [526G H]

Appeal No. 423 of 1964. Appeal by special leave from the order dated October 5, 1962 of the Central Government Industrial Tribunal at Dhanbad in Application No. 53 of 1961 in Reference Nos. 45, 56, 63 and 65 of 196.1. section V. Gupte, Solicitor General and I. N. Shroff, for the appellant. Jitendra Sharma and Janardan Sharma, for the respondent. The Judgment of the Court was delivered by Gajendragadkar, C. J. This appeal raises a very short point for our decision. The appellant, the Tata Iron & Steel Co. Ltd., (N)4SCI 430 Jamadoba, filed an application under section 33(2)(b) of the (No. 14 of 1947) (hereinafter called "the Act"), before the Central Government Industrial Tribunal, Dhanbad (hereinafter called "the Tribunal"), asking for its approval of the action which it proposed to take against its employee, the respondent D. R. Singh. This application was made by the appellant, because certain industrial disputes were pending at the relevant time between the appellant and its employees under References Nos. 45, 56, 63 and 65 of 1961. This application was opposed by the respondent who filed his written statement. At the hearing of the application, the appellant urged before the Tribunal that though it had made the present application as a matter of abundant caution, its case was that it was not necessary to apply under section 32(2), because the respondent was not concerned with the industrial disputes which were pending between the appellant and its employees in the different References to which we have already referred. In other words, the appellant wanted the Tribunal to consider the question as to whether the respondent was a workman concerned in the relevant industrial disputes at all, before dealing with the merits of its application. The appellant 's case was that one of the conditions precedent for the applicability of section 33 is that the workman against whom the employer seeks to take action falling under section 33(2), must be a workman concerned in the main industrial disputes; if he is not so concerned, section 33(2) will not apply. In order to avoid any complica tions and with a view to save itself from the charge that it had contravened section 33 of the Act, the appellant had no doubt made an application as a precautionary measure; that is why it wanted the Tribunal to consider its contention that section 33 did not apply as a preliminary point. The Tribunal took the view that the appellant could not raise such a contention. It held that if the appellant thought that section 33 did not apply, it should withdraw the application and take the consequences. On that view, it refused to entertain the plea raised by the appellant and proceeded to deal with the merits of the application. In the result, the Tribunal was not satisfied that a prima facie case had been made out for the dismissal of the respondent, and so, approval was not accorded to the action which the appellant wanted to take against the respondent and its application was accordingly dismissed. It is against this order that the appellant has come to this Court by special leave. The learned Solicitor General for the appellant contends, and we think rightly, that the Tribunal was in error in not dealing with the preliminary point as to whether section 33 applied to the facts of this case. It is plain that in a situation like the present, even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself. It would be legitimate for an employer like the appellant to make an application under section 33 without prejudice to his case that section 33 did not apply. The question 431 about the construction of the words "a workman concerned in such dispute" which occur in section 33(1) and (2) has been the subject matter of judicial decisions and somewhat inconsistent views had been taken by different High Courts on this point. Some High Courts construed the said words in a narrow way, vide New Jehangir Vakil Mills Ltd., Bhavnagar vs N. L. Vyas & Ors.,(1) while others put a broader construction on them, vide Eastern Plywood Manufacturing Company Ltd vs Eastern Plywood Manufacturing Workers ' Union(2). Newton Studios Ltd. vs Ethirajulu (T. R.) & Others(3), and Andhra Scientific Company Ltd. vs Seshagiri Rao (A).(4). This problem was ultimately resolved by this Court in its two recent decisions, viz., New India Motors (Private) Ltd. vs Morris (K.T.)(5) and Digwadih Colliery vs Ramji Singh(6). In this latter case this Court considered the conflicting judicial decisions rendered by the different High Courts and has approved of the broader construction of the words "workmen concerned in such dispute". Where judicial decisions differed on the construction of the words "workmen concerned in such dispute", it would be idle and unreasonable to suggest that the employer should make up his mind whether section 33 applies or not, and, if he thinks that section 33 does not apply, he need not make the application; on the other hand, if he thinks that section 33 applies, he should make an application, but then he cannot be permitted to urge that the application is unnecessary. Such a view is, in our opinion, wholly illogical and unsatisfactory. Therefore, we must hold that the Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial disputes and as such, the application made by it was unnecessary. That raises the question as to the course that we should adopt in dealing with the merits of the present appeal. Logically, it would be necessary to make a finding on the preliminary point raised by the appellant before the merits are considered, because if the appellant is right in contending that the respondent is not a "workman concerned with such disputes" within the meaning of section 32(2), the application would be unnecessary and there would be no jurisdiction in the Tribunal either to accord or to refuse approval to the action proposed to be taken by the appellant against the respondent. In the present case, however, we do not propose to adopt such a course. The order terminating the services of the respondent was passed on December 4, 1961 and it was to take effect from December 9, 1961. The Award was pronounced by the Tribunal on October 5, 1962, and when the appeal has come for final disposal before us, more than three years have elapsed since the date of dismissal of the respondent. The learned Solicitor General fairly con ceded that the appellant has come to this Court not so much to enforce its order of dismissal against the respondent, as to have a (1) [1958] II LLJ 575. (4) [1959] II LLJ 717. (2) [1952] I LLJ 628. (5) [1960] I LLJ 551. (3) [1958] I LLJ 63. (6) [19641 II LLJ 143. 432 decision from this Court on the point of law raised by it before the Tribunal. Accordingly, we have decided that point in favour of the appellant, but having regard to the long passage of time between the date of the impugned order and the date when we are pronouncing our judgment in the present appeal, we think it would be inexpedient and unjust to send the matter back to the Tribunal with a direction that it should decide the preliminary point raised by the appellant as to whether the respondent is a "workman concerned in such disputes" within the meaning of section 33(2) of the Act. That is why though we have reversed the finding of the Tribunal on the preliminary point, we do not propose to give this litigation any further lease of life. In the result, without examining the merits of the findings recorded by the Tribunal for not according approval to the dismissal of the respondent, we direct that the appeal fails and is dismissed. There would be no order as to costs. Appeal dismissed.

Because certain industrial disputes were pending before the Industrial Tribunal at the relevant time between the appellant and its employees, the appellant filed an application under section 33(2), (b) asking for approval of action which it proposed to take against its employee the respondent. The appellant urged that this application was made as a matter of abundant caution and it wanted the Tribunal to consider the question as to whether the respondent was a workman concerned in the relevant industrial dispute at all before dealing with the merits of the application. The Tribunal, being of the view that if the appellant thought that s, 33 did not apply, it should withdraw the application and take the consequences, dealt with the merits of the application. In appeal by special leave: HELD: The Tribunal was in error in not considering the preliminary point raised by the appellant that the respondent was not a workman concerned with the main industrial dispute and as such the application made by it was unnecessary. [431E] It is plain that in a situation like the present, where judicial decisions differed on the construction of the words "workman concerned in such dispute", even if the appellant took the view that the workman against whom it was taking action was not a workman concerned with the main industrial disputes, it would be justified in refusing to take the risk of deciding the said point for itself. It would he legiti mate for an employer to make an application under section 33 without prejudice to his case that section 33 did not apply. [431D E] Case law referred to.

vil Appeal Nos. 2780 81 of 1982 From the Judgment and Order dated 11.6. 1982 of the Karnataka High Court in Writ Petition No.3386 and 3387 of 1981 K.S. Cooper, Dr. Y.S. Chitale, Mrs. P.S. Shroff, S.S. Shroff and Mrs. Kiran Chaudhary for the Appellants. M. Veerappa, A.K. Sharma, K.N. Singh, S.S. JavaIi, G.P. Shivaprakash and B.P. Singh for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. Bangalore was a beautiful city once. It was a city with magic and charm, with elegant avenues, gorgeous flowers, lovely gardens and plentiful spaces. Not now. That was before the invasion of concrete and steel, of soot and smoke, of high rise and the fast buck. Gone are the flowers, gone are the trees, gone are the avenues. gone are the spaces. We are now greeted with tail puffing 1062 chimneys and monstrous high rise buildings, both designed to hurt the eye, the environment and the man. But they are thought by many as symbols of progress and modernity. They have come to stay. Perhaps they are necessary. Nostalgic sentiments, we suppose, must yield to modern societal re quirements. Smoking Chimneys produce much needed goods. High rise buildings save much scarce space. They have a place in the scheme of things. But where, how, to what extent, at what cost, are the questions raised by some aggrieved citizens of Bangalore. They want congestion to be prevented, population density to be controlled, lung spaces to be provided where people can breath, existing recreation al facilities to be preserved and improved, pollution and health hazards to be removed, civic and social amenities to be provided etc. All these require a balanced use of avail able land. It is with that object that the Mysore Town and Country Planning Act was enacted in 1961 and it is with the interpretation of some of the provisions of that Act that we are concerned in these appeals. The problem and the pain have been well brought out by the Chairman of the Bangalore Urban Arts Commission (4th respondent before the High Court) in the Chairman 's response to an editorial in a local newspaper. It is extracted in the Additional Statement filed in the High Court by the Writ Petitioners. He says, "when we speak of saving Bangalore 's skyline and its cherished character, we are apt to be misun derstood even by some well meaning citizens. Vested inter ests and busybodies with an easy conscience would in any case rubber wall any consideration of argument because the present time, with the skyrocketing property value, is a great opportunity for them to "make hay". They would rather sell the city than dwell on its future. We are not speaking only of the central areas of the city even when we regard them, understandably enough as more precious than the rest of the city. Nor are we trying to guard the City 's supposed "colonial solitude" which, we know, vanished many decades ago. We are not afflicted with irrational nostalgia and have no fetish about bungalows and court yards. We are aware of the dynamics of a modern city. All that we want and it was ably summed up in your editori al is that we must prevent any more ugliness and haphazard ness, of which we have had more than what Bangalore can take if it is to stay as the City Beautiful, with its planned spaciousness and (still) largely unclustered skyline. We also want, without any further delay, a vigilant, clearly speltout and scrupulously honest system to ensure an orderly growth of the city, in "Keeping with the capacity of its services, like water supply, drainage and roads". 1063 I entirely agree that for new areas we must provide for more density of population if we are to get adequate mileage from per capital expenditure, and if we are to release sufficient lung spaces for recreational and community activ ities. In fact, we have long back suggested to City Planners to plan for self contained and self sufficient clusters of multiple storey blocks, with their own plazas, shopping and recreational centers, in carefully selected locations and in keeping with the available services. Again, there is no doubt that coverage per plot must be systematically reduced through imaginatively formulated bye laws, if we are to continue the garden city character of the City 's new areas. It is utterly mystifying however, that such obviously valid thoughts and suggestions should end with the plea for "concentrated growth" presumely in the central area of the city and preferably with high rise buildings. Such growth which is bound to obliterate what we have still left of this beautiful city and put further strains on its traffic, water supply and drainage, is cer tainly not going to help the proletarian office goer or house seeker. It will serve only the big time builder, the high spending rich and last but not least the fast buck chasing wheeler dealers and busybodies mentioned above. "Now that the State Government has announced a clear policy in this behalf, there is no reason why we should not expect the best. This Commission has made its own contribu tion to the formulation of a new set of building bye laws which aim at the much needed regulation on fully modern lines of this City 's future growth, and which leave minimum scope for corruption. We hope that these will be adopted soon. We look forward to a new approach and a new era free from the stench of corruption. We hope that these will be adopted soon. We look forward to a new approach and a new era free from the strench of corruption, innuendoes and loose talk of "motives", and characterised by future think ing. After all, we have the City Beautiful because of the future thinking and hard work of the planners and adminis trators." Raj Mahal Vilas Extension is a sparsely developed area of the city of Bangalore which the Bangalore Improvement Trust Board desired to develop under the provisions of the city of Bangalore Improvement Act, 1945. Land was acquired and plots were allotted to several people. A lay out was prepared and conditions were imposed for construction of houses on the sites. The present appellants as well as the petitioners before the High Court were all of them allottees 1064 from the Improvement Trust Board. One of the conditions of allotment was that the sites were not to be sub divided and not more than one dwelling house was to be constructed on each of the sites. Apparently multistoreyed, high rise buildings were not within the contemplation of either the Improvement Trust Borad or the allottees at the time of allotment. However, the petitioners before the High Court were dismayed to find such high rise buildings coming up in the Raj Mahal Vilas Extension. Apprehending that there was going to be an invasion of the privacy of the residents of the locality, a disturbance of the peace and tranquility of the residential area, an interference with basic civic amenities consequent on haphazard rise of high rise build ings, and exposing of the residents to all manners of health hazards and interference with their way of living, a number of residents of the locality submitted a memorandum to the Governor and the Chief Minister of the State to take appro priate action to prevent the construction of high rise buildings in a residential area such as the Raj Mahal Vilas Extension. There was no response from the authorities. In desperation, some of the persons who submitted the memoran dum resorted to 'Public Interest Litigation ' and filed the writ petitions out of which the present appeals arise. Their principal complaint was that the Outline Development Plan for Bangalore which had been published in the prescribed manner had been ignored by the authorities in granting permission to the appellants to construct the high rise buildings. The first of the grounds mentioned in the writ petitions was that permits had been granted to construct eight floor residential buildings going to a height of 80 feet whereas under the regulations the maximum permissible height of a building was only 55 feet. The inconveniences, discomforts and the hazards to which such a high rise build ing in a residential locality would expose the other resi dents of the locality were explained in the writ petition and writs were sought to quash the permits granted for construction and to restrain the present appellants from constructing the eight floor buildings and to direct them to demolish the structures already put up. There was also a prayer to require the Bangalore Urban Arts Commission to recommend to the State of Karnataka against the construction of high rise buildings in any of the existing extensions of Bangalore. Writ Petition No. 3386 of 1981 out of which arises Civil Appeal No. 2780 of 1982 and Writ Petition No. 3387 of 1981 out of which arises Civil Appeal No. 2781 of 1982 were filed on 25.2.81. In Writ Petition No. 3386 of 1981 an interim order was initially refused by a learned Single Judge but on appeal a Division Bench of the High Court granted an interim order restraining the appellants in Civil Appeal No. 2780 of 1982 from raising further construc tion. However, in the special leave petition filed by 1065 the appellants the order of the learned Single Judge was restored subject to an undertaking given by the appellants that in the event of the original writ petition being al lowed and the construction being required to be pulled down, the appellants will not raise any objection and will not plead the construction during the pendency of the writ petition as a defence to the pulling down of the construc tion. The order of the Supreme Court was made on 2.6.81. In W.P. No. 3387 of 1981 the High Court made an interim order on 24.7.81 permitting the appellants in Civil Appeal No. 2781 of 1982 to proceed with the construction subject to the appellants giving an undertaking similar to the undertaking given by the appellants in the other connected appeal. We find from the judgment of the High Court that in W.P. No. 3386 of 1981 only excavation work had been done by the time of the filing of the petition and that the work was complet ed only after the undertaking was given to the Supreme Court. In the other case the ground floor had been con structed and pillars had been put up for the next floor when the writ petition was filed. The work was completed after the undertaking was given to the Division Bench of the High Court. We may add that again in this Court when the appel lants sought interim orders to enable them to complete the construction during the pendency of the present appeals they gave an undertaking that they would complete the construc tion work of the 4th, 5th, 6th, 7th, and 8th floors at their own risk and cost and that they will raise no objection whatever to this Court passing an order for demolition of the said floors if the Court was ultimately inclined to pass such an order and that they would claim no compensation for demolition, if ordered. The present appellants contested the writ petitions. The writ petitions appeared to have been argued in the first instance before a learned single Judge who after hearing the petitions for some considerable time referred them for hearing by a Division Bench. The Division Bench commenced hearing the writ petitions on 16.3.82 and on 22.3.82 a further contention was raised by the appellants that the Outline Development Plan and the Regulations were never published, consequently they have never become effective and, therefore, there was no need for any compliance with the requirements of the plan and the regulations. As it turns out this is the only contention which was finally argued before the High Court and before us. The High Court overruled the contention and declared the licences granted for construction illegal and directed the Commissioner, Corporation of the City of Bangalore to modify the licences so as to bring them in conformity with the Outline Develop ment Plan and the Zonal Regulations appended thereto promul gated under Section 13(4) of the Karnataka 1066 Town and Country Planning Act and take all consequential action in accordance with law. Shri Cooper, learned counsel for the appellants urged that publication of the Outline Development Plan and the Regulations in the prescribed manner, that is, in the Offi cial Gazette was mandatory under Section 13(4) and that failure to so publish the Outline Development Plan and the Regulations rendered them ineffective. The licences already granted to the appellants could not be cancelled or directed to be modified so as to be in accord with the Outline Devel opment Plan and the Regulations. It was further urged that the Regulations were distinct from the Outline Development Plan and that in the case of the Regulations, there was no attempt whatever at publication. It was submitted that the High Court was in error in holding that Section 76J cured whatever defect there was in regard to the publication of the Plan and the Regulations. It was said that the High Court was also in error in holding that the Outline Develop ment Plan and the Regulations became effective as soon as they were approved by the Government under Section 13(3) of the Act irrespective of the date of publication under Sec tion 13(4). On the other hand, it was submitted by Shri Javali, learned counsel for the writ petitioners in the High Court that there was sufficient publication of the Plan and the Regulations, that the Plan and the Regulations were always kept available for inspection at the office of the concerned authorities and that it was not the case of the appellants originally that there was no publication and that they had no knowledge of the Plan and the Regulations. It was only after thought, put forward in the course of the arguments at the final stage of the hearing of the writ petitions. It was submitted that such defect as there was in the publication of the Plan and the Regulations was effec tively cured by Section 76J and the passage of time. It was also pointed out that the Regulations were an integral part of the Outline Development Plan. In order to appreciate the rival contentions of the parties, it is necessary to refer to the relevant statutory provisions. In 1961 the Bangalore Metropolitan Planning Board was formed. The Board prepared an Outline Development Plan (For short, O.D.P.). In February 1963 the Mysore Town and Country Planning Act, 1961 came into force with effect from January 15, 1965. Section 81 A(a) of the Act provides that the Outline Development Plan for the Bangalore Metropolitan Area prepared by the Bangalore Metropolitan Planning Board shall be deemed to be the Outline Develop 1067 ment Plan of the Planning Area comprising the City of Banga lore, prepared under the Act, by the Planning Authority of the Area. Section 81 (a) further provides that the said plan along with the particulars specified in clauses (ii), (iii), (iv) and (v) of Section 12(2) shall be published and submit ted to the State Government for provisional approval. Sec tion 81 A(b) provides that on receipt of the plan and particulars, the State Government shall after making such modifications as it deems fit, return the plan and the particulars to the Planning Authority, which shall thereupon take further action in accordance with the provisions of Section 13. Section 2(3) defines 'land use ' to mean the major use to which a plot of land is being used on any specified date. Section 2(4) defines 'notification ' to mean a notification published in the Official Gazette. 'Planning Area ' is de fined by Section 2(6) to mean the area declared to be a local planning area under the Act in the case of the local planning area comprising the city of Bangalore. 'Planning Authority ' is defined to mean the Planning Authority consti tuted under the Act. Section 2(9) defines 'prescribed ' to mean prescribed by rules made under the Act. Section 2(11) defines 'regulations ' to mean the Zonal Regulations govern ing land use made under the Act. Chapter III of the Act deals with Outline Development Plan (O.D.P.). Section 9(1) empowers the Planning Authority to prepare and publish in the prescribed manner an Outline Development Plan for the area within its jurisdiction and submit it to the State Government for provisional approval. Section 9(4) prescribes that a copy of the O.D.P. sent to the State Government under sub section(1) shall be kept open for inspection by the public at the head office of the Planning Authority before carrying out a survey for the purpose of preparing an O.D.P. for such an area. A Planning Authority is required by Section 10 to make a declaration of its intention to prepare such plan and to despatch a copy of the same to the State Government for publication in the Official Gazette and is also required to publish in the prescribed manner an invitation to the public to make sug gestions. All suggestions made in response to the invitation within the prescribed period are required to be considered by the Planning Authority before submitting the plan to the State Government. Section 12 deals with the contents of Outline Development Plan and we think it necessary to ex tract here the whole of the section. Section 13 deals with approval of the Outline Development Plan and we think that it is necessary to extract Section 13 also. Sections 12 and 13 are as follows: 1068 "section 12. Contents of Outline Development Plan (1) An Outline Development Plan shall generally indicate the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority are to be carried out and regulated. In particular it shall include, (a) a general land use plan and zoning of land use for residential, commercial, indus trial, agricultural, recreational, educational and other public purposes; (b) proposals for roads and highways; (c) proposals for the reservation of land for the purposes of the Union, any State, any local authority or any other authority estab lished by law in India; (d) proposals for declaring certain areas as areas of special control, development in such areas being subject to such regulations as may be made in regard to building line, height of buildings, floor area ratio, architectural features and such other particulars as may be prescribed; (e) such other proposals for public or other purposes as may from time to time be approved by the Planning Authority or directed by the State Government in this behalf. Explanation 'building line ' means the line up to which the plinth of a building adjoining a street may lawfully extend and includes the lines prescribed, if any, in any scheme. (2) The following particulars shall be published and sent to the State Government through the Director along with the Outline Development Plan, namely: (i) a report of the surveys carried out by the Planning Authority before the preparation of such plan; (ii) a report explaining the provisions of such Plan; (iii) regulations in respect of each land use zone to enforce 1069 the provisions of such plan and explaining the manner in which necessary permission for developing any land can be obtained from the Planning Authority; (iv) a report of the stages by which it is proposed to meet the obligations imposed on the Planning Authority by such a plan; (v) an approximate estimate of the cost in volved in the acquisition of lands reserved for public purposes." "S.13. Approval of the Outline Development Plan (1) On receipt of the Outline Develop ment Plan with the particulars referred to in Section 12 from the Planning Authority under sub section (1) of Section 9, or after such plan and particulars are prepared and pub lished under subsection (2) of Section 9 the State Government after making such modifica tions as it deems fit or as may be advised by the Director, shall return through the Direc tor, the plan and the particulars to the Planning Authority, which shall thereupon pub lish, by notification, the plan and the par ticulars inviting public comments within one month of such publication. (2) If within one month of the publication under subsection (1) any member of the public communicates in writing to the Planning Au thority any comments on the plan and the regulations, the Planning Authority shall consider such comments and resubmit the plan and the regulations to the State Government, through the Director with recommendations for such modifications in the plan and regulations as it considers necessary in the light of the public comments made on the plan and regula tions. (3) The State Government, after receiving the plan and the regulations and the recommen dation for modifications from the Planning Authority, shall in consultation with the Director, give its final approval to the plan and the regulations with such modifications as the Director may advice in the light of the comments and the recommendations of the Plan ning Authority or otherwise. (4) The Planning Authority, shall then publish in the 1070 prescribed manner the Outline Development Plan and the Regulations as approved by the Govern ment. The plan and the particulars shall be permanently displayed in the offices of the Director and the Planning Authority and a copy shall be kept available for inspection of the public at the office of the Planning Authori ty. " Section 14 speaks of 'Enforcement of the Outline Devel opment Plan and the Regulations '. Section 14(1) prescribes that on and from the date on which a declaration of inten tion to prepare an outline is published under sub section (1) of Section 10, every land use, every change in land use and every development in the area shall conform to the provisions of the Act, the Outline Development Plan and the Regulations as finally approved by the State Government under subsection (3) of Section 13. The only other provision of the Act to which reference is necessary is, what we may call the, "Ganga" clause*, Section 76J which provides for 'Validation of acts and proceedings '. It is as follows: "76 J. Validation of acts and proceedings No act done or proceeding taken under this Act shall be questioned on the ground merely of, (a) the existence of any vacancy in, or any defect in the constitution of the Board or any Planning Authority; (b) any person having ceased to be a member; (c) any person associated with the Board or any planning authority under section 4F having voted in contravention of the said section; or (d) the failure to serve a notice on any person, where no substantial injustice has resulted from such failure; or (e) any omission, defect or irregularity not affecting the merits of the case. " We may also refer here to the rules relating to publica tion. Rule 32 provides for "publication of Outline Develop ment Plan under sub 1 ' According to Hindu tradition the waters of the Ganga purify, cleans the sins and remedy all insufficiencies. 1071 section (1) and sub section (2) of Section 9". It prescribes that the publication shall be made by making a copy of the Plan available for inspection and displaying a notice in Form II, (a) at the office of the Planning Authority and (b) at such other places as may be specified by the Planning Authority. The Planning Authority is also required to pub lish a notice in Form II in the Official Gazette and in one or more newspapers. The publication under Section 9(2) is also required to be made in the same manner except that reference to Planning Authority is to be construed as a reference to the Director. Rule 33 provides for 'Publication of Outline Development Plan and Regulations under Section 13(4) ' and stipulates that the Outline Development Plan and the Regulations as approved by the State Government under subsection (3) of Section 13 shall be published in the Official Gazette. Form 11 referred to in Rule 32 is as follows: FORM NO. II (Rule 32) NOTICE OF PUBLICATION OF OUTLINE DEVELOPMENT PLAN Notice is hereby given that an Outline Development Plan of . . . area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963) and a copy thereof is available for inspection at the office of the Planning Authority during office hours. If there be any objection or suggestion in respect of the Outline Development Plan, it should be lodged on or before the . . Every such objection or suggestion should either be presented in the office of the Planning Authority or sent by registered post to the Planning Authority. " We said earlier that the Outline Development Plan for the Bangalore Metropolitan Area was prepared by the Banga lore Metropolitan Planning Board and that under Section 81J of the Mysore Town and Country Planning Act, it was deemed to be the Outline Development Plan of the planning area comprising the city of Bangalore, prepared under the Act, by the Planning Authority of such 1072 area. A 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette on 21.12.1967 in Form II. It was as follows: "OFFICE OF THE PLANNING AUTHORITY BANGALORE CITY, PLANNING AREA, BAN GALORE 9 Notice of Publication of Outline Development Plan Notice is hereby given that an Outline Development Plan of Bagalore City Planning Area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963) and a copy thereof is available for inspection at the office of the Planning Authority in Seshadri Road, Bangalore City during office hours. If there be any objection or sugges tion in respect of the Outline Development Plan, it should be lodged on or before the 15th day of February, 1968. Every such objection or suggestion should either be presented in the office of the Planning Authority or sent by registered post to the Planning Authority. K. Balasubramanyam CHAIRMAN" After the State Government provisionally approved the Plan 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette dated 10.10.68 again in Form II. The Notification was in the following terms: "OFFICE OF THE CHAIRMAN, PLANNING AUTHORITY BANGALORE CITY PLANNING AREA, BANGALORE 9 Notice of Publication of Outline Development Plan. Notice is hereby given that an Out line Development Plan of Bangalore City Plan ning Area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963). The said Plan has been provi sion 1073 ally approved by the Government of Mysore as per Section 13(1) of the above Act. A copy of the above approved plan and the report are available for inspection at the office of the Planning Authority in Seshadri Road, Bangalore City during office hours. If there be any objection or sugges tion in respect of the Outline Development Plan it should be lodged within 30 days from the date of publication of this notice in the Gazette. Every such objection or suggestion should either be presented in the office of the Planning Authority or sent by registered post to the Planning Authority. CHAIRMAN PLAN NING AUTHORITY" It appears that in response to the invitation to file objec tions, as many as 600 representations and objections were received from individuals, institutions, associations, Chambers of Commerce etc. The Outline Development Plan was finally approved by the Government and a notification to that effect was published in the Mysore Gazette dated 13.7. 1972 in the following terms: "OFFICE OF THE CHAIRMAN, PLANNING AUTHORITY BANGALORE CITY PLANNING AREA, BANGALORE 9. Dated, 27th June 1972. Notice of Publication of Outline Development Plan. In pursuance of Rule 33 of the Mysore Planning Authority Rules 1965 Notice is hereby given that an Outline Development Plan of Bangalore City Planning Area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963). The said plan has been finally approved by the Govern ment of Mysore as per Section 13(3) of the above Act. A copy of the above approved plan and the report are available for inspection at the office of the Planning Authority in Sesha dri Road, Bangalore City, during office hours. 1074 M.S. Ramachandra Chairman Planning Authority. " It is seen that 'at every stage the public were informed by notices published in the Official Gazette that the Outline Development Plan was available for inspection at the office of the Planning Authority, though it is not disputed that the Plan and the Regulations themselves were never published as such in the Gazette. The question for consideration is whether the intimation to the public through the Official Gazette that the Outline Development Plan was available for inspection at the office of the Planning Authority is a sufficient compliance with the requirement of Section 13(4) regulating the publication of the approved Plan and Regula tions? There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compli ance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the stand point of the 'conscientious good man ' seeking to abide by the law or from the standpoint of Justice Holmes 's 'Uncon scientious bad man ' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation. But unlike Parlia mentary Legislation which is publicly made, delegated or subordinate legislation is often made, unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publi cation, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publi cation. There may be subordinate legislation which is con cerned with a 1075 few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient. * In the present case Section 13(4) has prescribed the mode of publication of the Outline Development Plan and the Regulations. It requires the Outline Development Plan and the Regulations to be published in the prescribed manner and the Plan and particulars to be permanently displayed in the offices of the Director and the Planning Authority and a copy to be kept available for the inspection of the public at the office of the Planning Authority. The particulars referred to, we presume, are the particulars mentioned in Section 12(2) of the Act consisting of various reports, including the Regulations. 'The prescribed manner ' is what is prescribed by Rule 33, that is, publication in the Offi cial Gazette. If we now turn to Section 9(1) and 9(2), we find that there too the the Outline Development Plan is required to be published in 'the prescribed manner '. The prescribed manner for the purposes of sub sections (1) and (2) of Section 9 is that prescribed by Rule 32. Rule 32 we have seen prescribes making a copy of the Plan available for inspection, publishing a notice in Form No. II in the Offi cial Gazette and in one or more newspapers and displaying a notice in Form No. II at the office of Planning Authority and at other specified places. It is true that Rule 33 speaks of publication of approved Outline Development Plan and Regulations in the Official Gazette, suggestive of a requirement that the Outline Development Plan and Regula tions should bodily be incorporated in the Official Gazette. But if the entire scheme of the Act and the rules is consid ered as an integral whole it becomes obvious that what Section 13(4) contemplates besides permanently displaying the plan and the particulars in the offices of Director and Planning Authority and keeping available a copy for the inspection of the public at the office of Planning Authority is a public notice to the general public that the Plan and Regulations are permanently displayed and are available for inspection by the public. Such public notice is required to be given by a publication in the Official Gazette, This is how it was understood by the authorities and everyone else concerned and this is how it was done in the present case. This appears to be a reasonable and a rational interpreta tion on Section 13(4) and Rule 33 in the setting and the scheme. We are of the view that there was compliance with the requirements of Section 13(4) and Rule 33. We have earlier mentioned that Section 13(1) requires the provision al Outline Development Plan * See Narayana Reddy, vs State of Andhra Pradesh = 1969 (1) Andhra Weekly Reporter 77. 1076 and particulars to be published by notification in the Official Gazette, with a view to invite comments from the public. What was published in the present case under Section 13(1) was also a notice in Form No. II and not the whole of the Plan and particulars. Such publication evoked considera ble public response. As many as 600 representations from individuals and institutions were received. That is why we said that everyone concerned, that is, the Government, the Director, the Planning Authority and the public, individual and institution alike, thought that publication of a notice in the Gazette inviting the attention of the public to the display and the availability for inspection of the Plan and particulars was all that was contemplated by the provisions providing for publication. We do not think that there is any reason or justification for us to adopt an interpretation which departs from common understanding of the Act and the Rules. Shri Cooper invited our attention to Shalagram Jhajharia vs National Co. Ltd. & Ors., and Firestone Tyre & Rubber Co. vs Synthetics & Chemicals Ltd. & Ors., [1971] 41 Company cases 377 to urge that offer of inspection cannot be a substitute for publication. We do not think that these two cases are of assistance to Shri Cooper. What was laid down in those cases was the mandatory require ment of a full and frank disclosure of the relevant facts, in the explanatory note attached to the notice convening a general meeting of the company cannot be circumvented by an offer of inspection. Another case to which Shri Cooper drew our attention was Municipal Board, Pushkar vs State Trans port Authority, Rajasthan & Ors., [1963] Suppl. 2 S.C.R. 373. In that case the question arose as to what was to be treated as the date of the order of the Regional Transport Authority. Was it the date of the resolution of the Regional Transport Authority or was it the date on which the resolu tion was brought into effect by publication of the notifica tion? The answer was that it was the date of the publication of the notification. In Joint Chief Controller of Imports & Exports, Madras vs M/s. Aminchand Mutha etc. ; , another case on which Shri Cooper relied, the Court held that there was no order prohibiting the import of fountain pens, since in fact no such order had been pub lished and no such order was brought to the notice of the Court. All that was available was an entry 'nil ' against fountain pens in the declaration of policy as to import. We are unable to see how these two cases can be of any help to Shri Cooper. Shri Cooper also invited our attention to cases drawing a distinction between mandatory and directory statu tory requirements but those cases again are of no avail to him in the view that we have taken. We also desire to state that the effect of the non perfor 1077 mance of a duty imposed by a statute in the manner pre scribed by the statute is not discovered by a simple answer to the question whether the statute is mandatory or directo ry. These are not simple chemical reactions. The question whether a statutory requirement is mandatory or directory cannot itself be answered easily as was pointed out more than a century ago in Liverpool Borough vs Turner, ; Many considerations must prevail and the object and the context are the most important. The High Court was of the view that such defect as there was in regard to publication of the Plan was cured by Sec tion 76J, ' the Omnibus Curative clause to which we earlier made a reference as the 'Ganga ' clause. Provisions similar to s.76J are found in several modern Acts and their object is to put beyond challenge defects of constitution of statu tory bodies and defects of procedure which have not led to any substantial prejudice. We are inclined to agree with the High Court that a defective publication which has otherwise served its purpose is not sufficient to render illegal what is published and that such defect is cured by Section 76J. The High Court relied on the two decisions of this Court Bangalore Woollon, Cotton & Silk Mills Co. Ltd. Bangalore vs Corporation of the City of Bangalore and Municipal Board, Sitapur vs Prayag Narain Saigal & Firm Moosaram Bhagwandas, ; In the first case objection was raised to the imposition of octroi duty on the ground that there was failure to notify the final resolution of the imposition of the tax in the Government Gazette as required by Section 98(2) of the City of Bangalore Municipal Corporation Act. A Constitution Bench of the Court held that the failure to publish the final resolution in the Official Gazette was cured by S.38(1)(b) of the Act which provided that no act done or proceeding taken under the Act shall be questioned merely on the ground of any defect or irregulari ty in such act or proceeding, not affecting the merits of the case. The Court said that the resolution had been pub lished in the newspapers and was communicated to those affected and failure to publish the resolution did not affect the merits of its imposition and failure to notify the resolution in the Gazette was not fatal to the legality of the imposition. In the second case it was held that the non publication of a special resolution imposing a tax was a mere irregularity, since the inhabitants had no fight to object to special resolutions and had otherwise clear notice of the imposition of the tax. It is true that both these cases relate to non publication of a resolution regarding imposition of a tax where the imposition of a tax was other wise well known to the public. In the present case the situation may not be the same but there certainly was an effort to bring the Plan 1078 and regulations to the notice of the public by giving notice of the Plan in the Official Gazette. Non publication of the Plan in the Official Gazette was therefore a curable defect capable of being cured by Section 76J. It is here that the failure of the appellants to plead want of publication or want to knowledge in the first instance assumes importance. In the answer to the Writ Petitions, the appellants took up the substantial plea that they had complied with the re quirements of the Outline Development Plan and the Regula tions but not that they had no knowledge of any such re quirement. It can safely be said that the defect or irregu larity did not affect the merits of the case. Finally, one last submission of Shri Cooper requires to be examined. Shri Cooper submitted that Section 13(1) used the words "the Plan and the particulars", Section 13(2) used the Words "the Plan and the Regulations," Section 13(3) used the words "the Plan and the Regulations" and Section 13(4) used the words, "the Outline Development Plan and the Regu lations" as well as the words, "the Plan and the Regula tions". This, according to Shri Cooper, signified that the particulars and the Regulations are not to be treated as part of the Plan but as creations distinct from the Plan. We do not think that we are entitled to split the unity and identity of the plan as suggested by the learned counsel. The Outline Development Plan and the Regulations are not distinct from each other. The regulations are born out of the Plan and the Plan thrives on the Regulations. The Plan is the basis for the Regulations and the Regulations are what make the plan effective. Without the Regulations, the plan virtually becomes a dead letter. The reference in the four clauses of Section 13, whenever the word 'Plan ' or the 'Outline Development Plan ' is used, is to the core plan, without the particulars and the Regulations and not the whole of the Outline Development Plan which must include the Regulations. What the different phraseology is meant to convey is to emphasise the different parts of the Plan which have to be forwarded to the Government, considered by the Government made available for inspection by the public, as the case may be and to the extent necessary. Merely because the words "and Regulations" are added to the word 'Plan ', the Regulations are not to be treated as not constituting part of the Plan even as when a building is sold along with the fixtures, it does not mean that the fixtures are not treated as part of the building. Shri Cooper drew the dis tinction between the Plan and the Regulations to suggest that in the notice published on 27.6.72, the Planning Au thority mentioned that the Plan was available for inspection at the office of the Planning Authority but made no refer ence to the Regulations and, therefore, it must be consid ered that the Regulations were not made 1079 available for inspection and so never published. We do not think that it is possible to reach the conclusion suggested by Shri Cooper from the absence of the reference to the Regulations in the notice. The Authorities justifiably always treated the Plan as including the Regulations and we are satisfied that what was kept for inspection was the Plan along with the Regulations. Shri Cooper argued that neither the Municipal Corpora tion nor any other civic authority appeared to be aware of the Outline Development Plan and the Regulations as was evident from the circumstance that in the years that passed since the approval of the Plan by the Government and before the writ petitions were filed, as many as 57 building li cences had admittedly been issued in contravention of the Regulations. It may be that notwithstanding the Regulations some building licences were granted in contravention of the Regulations but that only exposes the deplorable laxity of the concerned authorities and emphasises the need for great er public vigilance. The present Writ Petitions, we hope, are forerunners of such vigilance. In the result we find no merit in the appeals which are accordingly dismissed with costs. The judgment of the High Court will now be given effect by the authorities, taking note of the several undertakings given to the High Court and this Court at various stages. A.P.J. Appeals dismissed.

In 1961 the Bangalore Metropolitan Board was formed. The Board prepared an Outline Development Plan (O.D.P.). In February, 1963, the Mysore Town and Country Planning Act, 1961 came into force with effect from January 15, 1965. Section 81 A(a) of the Act provides that the Outline Devel opment Plan for the Bangalore Metropolitan Area prepared by the Bangalore Metropolitan Planning Board shall be deemed to be the Outline Development Plan of the Planning Area com prising the City of Bangalore, prepared under the Act, by the Planning Authority of the Area. Section 81 A(a) further provides 'that the said plan alongwith the particulars specified in clauses (ii), (iii), (iv) 1055 and (v) of section 12(2) shall be published and submitted to the State Government for provisional approval. Section 81 A(b) provides that on receipt of the plan and the particulars, the State Government shall after making such modifications as it deems fit, return the plan and the particulars to the Planning Authority for taking further action in accordance with the provisions of section 13. Section 13 deals with approval of the Outline Development Plan. Section 76J provides for "validation of acts and proceedings". Rule 32 of the Mysore Planning Authority Rules, 1965 provides for "publication of Outline Development Plan under sub.s.(1) and sub s.(2) of s.9. " It prescribes that the publication shall be made by making a copy of the Plan available for inspection and displaying a notice in Form II, (a) at the office of the Planning Authority and (b) at such other places as may be specified by the Planning Authority. The Planning Authority is also required to publish a notice in Form II in the Official Gazette and in one or more newspapers. The Publica tion under s.9(2) is also required to be made in the same manner. Rule 33 provides for 'Publication of Outline Devel opment Plan and Regulations under s.13(4), and stipulates that the Outline Development Plan and the Regulations as approved by the State Government under sub s.(3) ors.13 shall be published in the Official Gazette. A 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette dated 21.12.1967 in Form II. After the State Government provisionally approved the Plan, 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette dated 10.10.1968 again in Form II. In response to the invitation to file objec tions, as many as 600 representations and objections were received from individuals, institutions, associations, Chambers of Commerce etc. The Outline Development Plan was finally approved by the Government and a notification to that effect was published in the Mysore Gazette dated 13.7.72. The Bangalore Improvement Trust Board desired to develop Raj Mahal Vilas Extension under the provisions of the City of Bangalore Improvement Act, 1945. Land was acquired and plots were alloted to several people. A lay out plan was prepared and conditions were imposed for construction of houses on the sites. One of the conditions of allotment was that the sites were not to be sub divided and not more than one dwelling house was to be constructed on each of the sites. Apparently multistoreyed, high rise buildings were not within the contemplation of either the Improvement Trust Board or the allotees at the time of allotment. However, High buildings came up. A number of residents of the locali ty submitted a memorandum to the Governor and 1056 the Chief Minister to take an appropriate action to prevent construction of high rise buildings in residential area of Raj Mahal Vilas Extention. Since there was no response some persons resorted to 'Public Interest Litigation, by filing writ petitions alleging that the Outline Development Plan for Bangalore which had been published in the prescribed manner had been ignored by the authorities in granting permission to the appellants to construct the high rise buildings and that permits had been granted to construct eight floor residential buildings going to a height of 80 feet whereas under the regulations the maximum permissible height of a building was only 55 feet. Writs were sought to quash the permits granted for construction, to restrain the appellants from constructing the eight floor buildings, to direct them to demolish the structures already put up and to require the Bangalore Urban Area Commission to recommend to the State Government against the construction of highrise buildings in any of the existing extensions of Banglore. The High Court allowed the petitions and declared the licences granted for constructions illegal and directed the Commissioner, Corporation of the City of Bangalore to modify the licences os as to bring them in confirmity with the Outline Development Plan and the Zonal Regulations appended thereto promulgated under s.13(4) of the Karnataka Town and Country Planning Act and take all consequential actions in accordance with law. In the appeal to this Court, on behalf of the appellants it was contended: (1) that publication of the Outline Devel opment Plan and the Regulations in the prescribed manner, that is, in the Official Gazette was mandatory under section i3(4) and that failure to so publish the Outline Development Plan and the Regulations rendered them ineffective. The licences already granted to the appellants could not be cancelled or directed to be modified so as to be in accord with the Outline Development Plan and the Regulations; (2) that the Regulations were distinct from the Outline Develop ment Plan and that in the case of the Regulations, there was no attempt whatever at publication; (3) that the High Court was in error in holding that s.76 J cured whatever defect there was in regard to the publication of the Plan and the Regulations and that the Outline Development Plan and the Regulations became effective as soon as they were approved by the Government under section 13(3) of the Act irrespective of the date of publication under s.13(4); (4) that offer of inspection cannot be a substitute for publication; (5) that section 13(1) used the words "the Plan and the particulars", section 13(2) used the words "the Plan and the the Regulations". s.13(3) used the words "the Plan and the Regulations" and s.13(4) used the words "the Out 1057 line Development Plan and the Regulations" as well as the words "the Plan and the Regulations" and this signified that the particulars and the Regulations are not to be treated as part of the plan but as creations distinct from the Plan. In the notice published on 27.6.1972, the Planning Authority mentioned that the Plan was available for inspection at the office of the planning authority but made no reference to the Regulations and, therefore, it must be considered that the Regulations were not made available for inspection and so never published; and (6) that neither the Municipal Corporation nor any other Civic Authority appeared to be aware of the Outline Development Plan and the Regulations as was evident from the circumstances that in the years that passed since the approval of the Plan by the Government and before the writ petitions were filed, as many as 57 build ings licences had admittedly been issued in contravention of the Regulations. On behalf of the respondents it was contended: (1) that there was sufficient publication of the Plan and the Regula tions, that the Plan and Regulations were always kept avail able for inspection at the office of the concerned authori ties and that it was not the case of the appellants origi nally that there was no publication and that they had no knowledge of the Plan and the Regulations: (2) that the defect in the publication of the Plan and the Regulations was effectively cured by s.76J and the passage of time; and (3) that the Regulations were integral part of the Outline Development Plan. Dismissing the Appeal, HELD 1. There was compliance with the requirements of section 13(4) of the Mysore Town and Country Planning Act, 1961 and Rule 33 of the Mysore Planning Authority Rules, 1965. [1075G] 2. At every stage the public were informed by notices published in the Official Gazette that the Outline Develop ment Plan was available for inspection at the office of the Planning Authority. [1078H] 3. The Authorities justifiably always treated the Plan as including the Regulations and what was kept for inspec tion was the Plan alongwith the Regulations. [1079A B] 4.(i) Where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and addi tions made to it by various processes. Whether law is viewed from the standpoint of the 1058 'conscientious good man ' seeking to abide by law or from the standpoint of Justice Holmes 's 'unconscentious bad man ' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. [1074C E] 4.(ii) Delegated or subordinate Legislation is all pervasive and there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation. But unlike Parliamentary Legisla tion which is publicly made, delegated or subordinate Legis lation, is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate Legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publica tion or promulgation is prescribed by the parent statute or not. [1074E F] 4.(iii) Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate Legislation itself prescribes the manner of publication such a mode of publication may be sufficient, if reasonable. If the subordinate Legislation, does not prescribe the mode of publication or if the subordinate Legislation prescribes a plainly unreasonable mode of publication it will take effect only when it is published from the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate Legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient. [1074F H; 1075A] 4.(iv) In the present case, s.13(4) has prescribed the mode of publication of Outline Development Plan and the Regulations. It requires the Outline Development Plan and the Regulations to be published in the prescribed manner and the Plan and particulars to be permanently displayed in the office of the Director and the Planning Authority and a copy to be kept available for the inspection of the public at the office of the Planning Authority. The particulars referred to presumably are the particulars mentioned in section 12(2) of the Act consisting of various reports, including the Regula tions. 'The prescribed manner ' is what is prescribed by Rule 33, that is, publication in the Official Gazette. [1075A C] 4.(v) Under s.9(1) and 9(2) also the Outline Development Plan is 1059 required to be published in 'the prescribed manner '. The prescribed manner for the purposes of sub s.(1) and (2) of s.9 is that prescribed by Rule 32. Rule 32 prescribes making a copy of the Plan available for inspection, publishing a notice in Form No. II in the Official Gazette and in one or more newspapers and displaying a notice in Form No.11 at the office of the Planning Authority and at other specified places. [1075C E] 4.(vi) Rule 33 speaks of publication of approved Outline Development Plan and Regulations in the Official Gazette suggestive of a requirement that the Outline Development Plan and Regulations should bodily be incorporated in the Official Gazette. But if the entire scheme of the Act and the rule is considered as an integral whole it becomes obvious that what section 13(4) contemplates besides permanently displaying the Plan and the particulars in the offices of Director and Planning Authority and keeping available a copy for the inspection of the public at the office of Planning Authority, is a.public notice to the general public that the Plan and Regulations are permanently displayed and are available for inspection by the public. Such public notice is required to be given by a publication in the Official Gazette. This is how it was understood by the authority and everyone else concerned and this is how it was done in the present case. This appears to be a reasonable and a rational interpretation of s.13(4) and Rule 33 in the setting and the scheme. [1075D H] 4.(vii) Section 13(1) requires the provisional Outline Development Plan and particulars to be published by notifi cation in the Official Gazette with a view to invite com ments from the public. What was published in the present case under s.13(1) was also a notice in Form No. II and not the whole of the Plan and particulars. Such publication evoked considerable public response. As many as 600 repre sentations from individuals and Institutions were received. Therefore everyone concerned, i.e., the Government, the Director, the Planning Authority and the public, individual and institution alike, thought that publication of a notice in the Gazette inviting the attention of the public to the display and availability for inspection of the Plan and particulars was all that was contemplated by the provisions providing for publication. There is no reason or justifica tion to adopt an interpretation which departs from common understanding of the Act and the Rules. [1075H; 1076A C] Shalagram Jhajharia vs National Co. Ltd. & Ors., , Firestone Tyre & Rubber Co. vs Syn thetics & Chemicals Ltd. & Ors., ,Municipal Board, Pushkar vs State Transport Authority, Rajasthan & Ors., [1963] Suppl. 2 1060 S.C.R. 373 and Joint Chief Controller of Imports & Exports, Madras vs M/s. Aminchand Mutha etc. ; , , distinguished. The effect of the non performance of a duty imposed by a statute in the manner prescribed by the statute is not discovered by a simple answer to the question whether the statute is mandatory or directory. These are not simple chemical reactions. The question whether a statutory re quirement is mandatory or directory cannot itself be an swered easily. Many considerations must prevail and the object and the context are the most important. [1077A B] Liverpool Borough vs Turner, ; , referred to. 6.(i) The High Court was of the view that such defect as there was in regard to publication of the Plan was cured by s.76J, the Omnibus Curative clause, called by this Court as the "Ganga" clause. Provisions similar to s.76J are found in several modern Acts and their object is to put beyond chal lenge defects of constitution of statutory bodies and de fects of procedure which have not led to any substantial prejudice. A defective publication which has otherwise served its purpose is not sufficient to render i1legal what is published and that such defect is cured by Section 76 J. [1077B D] Bangalore Woollen, Cotton & Silk Mills Co. Ltd. Banga lore vs Corporation of the City of Bangalore, and Municipal Board, 'Sitapur vs Prayag Narain Saigal & Firms Moosaram Bhagwandas, ; , followed. 6.(ii) In the present case, there certainly was an effort to bring the Plan and Regulations to the notice of the public by giving notice of the Plan in the Official Gazette. Non publication of the Plan in the Official Gazette was, therefore, a curable defect capable of being cured by s.76J. [1077H; 1078A B] 7. Failure of the appellants to plead want of publica tion or want of knowledge assumes importance. In the answer to the Writ Petitions, the appellants took up the substan tial plea that they had complied with the requirements of the Outline Development Plan and the Regulations but not that they had no knowledge of any such requirement. It can safely be said that the defect or irregularity did not effect the merits of the case. [1078B] 8. The Outline Development Plan and the Regulations are not 1061 distinct from each other. The Regulations are born out of the Plan and the Plan thrives on the Regulations. The Plan is the basis for the Regulations and the Regulations are what make the plan effective. Without the Regulations, the Plan virtually becomes a dead letter. The reference in the four clauses of s.13, where the word 'Plan ' or the 'Outline Development Plan ' is used, is to the core plan, without the particulars and the Regulations and not the whole of the Outline Development Plan which must include the Regulations. What the different phraseology is meant to convey is to emphasise tile different parts of the Plan which have to be forwarded to the Government, considered by the Government, made available for inspection by the public, as the case may be and to the extent necessary. Merely because the words "and Regulations" are added to the word 'Plan ', the Regula tions are not to be treated as not constituting part of the Plan even as when a building is sold along with the fix tures, it does not mean that the fixtures are not treated as part of the building. [1078D G] 9. Notwithstanding the Regulations some building li cences were granted in contravention of the Regulations but that only exposes the deplorable laxity of the concerned authorities and emphasises the need for greater public vigilance. The present Writ Petitions are forerunners of such vigilance. [1079C D]

Criminal Appeal No. 323 of 1980. From the Judgment and Order dated 1.5.1979 of the Orissa High Court in Government Appeal No. 38 of 1977. Raj Kumar Mehta for the Appellant. S.G. Sambandhan for the Respondent. The Judgment of the Court was delivered by RAMASWAMY, J. The respoudent was found to have sold adulterated cumin (Jira) on March 13, 1976 punishable under s.16(1)(a)(i) read with s.7(1) of the , for short 'the Act '. Both the courts found as a fact that the adulterated cumin was 254 exposed for sale and PW 1, the Food Inspector, purchased the cumin (Jira) under the provisions of the Act and on analysis by the Public Analyst it was found that it contained 9% foreign seeds as against permissible 7.0%; inorganic (dust, stones, lumps of earth etc.) 0.2% and organic (chaff, sterm, stipules, etc.) at 1.8%. Accordingly it was found to have been adulterated. The Magistrate and the High Court acquit ted the respondent on the sole ground that his father Appa Rao was the owner of the shop. Had that fact been brought to the notice of the sanctioning authority under s.20 of the Act, it would not have permitted to prosecute the respond ent, the son of the owner. Accordingly placing reliance on Jagan Nath Sahu vs Food Inspector, Jaipur Municipality (1973) 2 Cuttack Weekly Reporter 1556 acquitted the accused and was confirmed by the High Court. The sole question that emerges for consideration is whether it is necessary that the respondent should be the owner of the shop for being prosecuted for the offences under section 16(1)(a)(i) read with s.7(1) of the Act. Sub sec tion (1) of s.20 of the Act reads thus: "(1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority". Proviso is not necessary. Hence omitted. Section 2 of the Act defines 'adulterated ' that if the articles sold by a vendor is not of the nature, substance or quality demanded by the purchaser, who is to purchase, the article is adulterated. If the quality or variety of the articles fail below the prescribed standard or its constitu ents are present in quantities not within the prescribed limits of variability, is also adulterated. It would, there fore, be clear that the word 'adulterated ' was used widely. If the food or article of food is adulterated, if it is not of the nature, substance or quality demanded by the purchas er and sold by the seller and is to his prejudice , or contains any foreign substance in excess of its prescribed limit, so as to effect injuriously, the nature, substance or quality thereof. In view of the finding of the courts below that cumin (Jira) was adulterated it is a sale by the vendor to the purchaser in terms of the provisions of the Act. What s.20 envisages is that no prosecution for an offence under the Act should be instituted except by or by the written consent of the Central Government or the State Government or a local authority or a person otherwise authorised in this behalf by general or special order by the Central Government or the State Government or a 255 local authority. Therefore, grant of sanction to prosecute for an offence under the Act is a condition precedent. The relevant criteria under s.20(1) is the competence of the Officer to grant the sanction for the offence. It does not postulate whether the person sold should be the owner or a servant or a person on behalf of the owner (son of the owner). Section 7 prohibits manufacture, sale of certain articles of food. No 'person ' shall himself or any person on his behalf manufacture for sale, or store or sell or dis tribute (i) any adulterated food etc. The phrase "himself or any person on his behalf ' obviously included any other person like servant, son, father, or agent irrespective of the relationship legal or jural etc. The person so sold during the course of business either the owner or the person that sold the adulterated food or article of food or both are liable to prosecution. It is not in dispute that the officer that granted the sanction in this case is the competent officer as a delegate on behalf of the local authority. Undoubtedly, a valid sanction is a condition precedent. If no valid sanction was granted by the authority, certainly the accused is entitled to the benefit of statutory infraction, though it is techni cal and be acquitted of the offence. In Sarjoo Prasad vs The State of U.P., [1961] 3SCR 324, it was contended that a servant who sold food on behalf of his employer was not liable unless it was known that he has done it with knowledge that the food was adulterated. This court held that s.7 of the Act enjoins everyone whether an employer or a servant not to sell adulterated food and anyone who contravenes this provision is punishable under section 16 without proof of mensrea. This court repelled the argu ment that the legislature could not have intended, having regard to the fact that large majority of servants in the shops which deal in food are illiterate to penalise servants who are not aware of the true nature of the article sold. The intention of the legislature must be gathered from the words used in the statute and not by any assumption about the capacity of the offenders to appreciate the gravity of the acts done by them. There is also no warrant for the assumption that the servants employed in shops dealing in food stuff are generally illiterate. In the interest of the public health, the Act was enacted prohibiting all persons from selling adulterated food. In the absence of any provi sion, express or necessarily implied from the context, the courts will not be justified in holding that the prohibition was only to apply to the owner of the shop and not to the agent of the owner who sells adulterated food. This view was reiterated in Ibrahim Haji Moideen & Anr. vs Food Inspector ' & Anr., (1976) 2 All India Prevention of Food Adulteration Cases 66. This court held that for the purpose of conviction under charge on which A 2 was tried. it was immaterial whether he was an agent or a partner of 256 A 1. Once it is proved that he sold the adulterated arti cles, he was liable to be convicted under section 16(1) read with s.7 of the Act. The contention that it is only the owner of the shop that could be convicted was held to be wholly an unsustainable contention. The Act is a welfare legislation to prevent health hazards by consuming adulterated food. The mensrea is not an essential ingredient. It is a social evil and the Act pro hibits commission of the offences under the Act. The essen tial ingredient is sale to the purchaser by the vendor. It is not material to establish the capacity of the person vis a vis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop. It is enough for the prosecution to establish that the person who sold the adulterated article of food had sold it to the purchaser (including the Food Inspector) and that Food Inspector purchased the same in strict compliance with the provisions of the Act. As stated earlier the sanctioning authority has to consider the material place before it whether the offence of adulteration of food was committed and punishable under the Act. Once that satisfaction is reached and the authority is competent to grant the sanc tion, the sanction is valid. It is not necessary for the sanctioning authority to consider that the person sold is the owner, servant, agent or partner or relative of the owner or was duly authorised in this behalf. We have, therefore, no hesitation to hold that the courts below committed manifest error of law causing miscar riage of justice in holding that the sanctioning authority must be apprised of the status of the person that sold the adulterated food article to the Food Inspector or the pur chaser. Consequently, the acquittal is set aside and the respondent is held liable to be conviction and accordingly convicted under s.16(1)(a)(i) read with s.7(1) of the Act. But what is the sentence to be imposed? The offence had occurred on March 13,1976 before the Amending Act has come into force. Under the unamended Act it was not mandatory to impose the minimum sentence. For reasons to be recorded the Magistrate may impose the sentence, fine or both for the first offence and it was mandatory to impose minimum sen tence for second or subsequent offences. As stated, 15 years have passed by from the date of the offence and at this distance of time the ends of justice may not serve to send the respondent to imprisonment. Suffice that he has undergone, all these years, the agony of the prosecution. But, however, the sentence of fine of a sum of Rs. 500 is imposed upon the respondent and he shall pay the same. In default he shall undergo the imprisonment for a period of one month. The appeal is accordingly allowed. V.P.R. Appeal allowed.

On 13.3.1976, it was found that the respondent sold adulterated cumin(Jira). The Food Inspector purchased the Jira under the provisions of the Act and on analysis the Public Analyst found that it was adulterated. The respondent was charged u/s.16(1)(a)(i) read with section 7(1) of the . The Trial Court acquitted the respondent on the ground that his father was the owner of the shop and assuming that if that fact had been brought to the notice of the sanction ing authority section 20 of the Act, it would not have permit ted to prosecute the respondent, the son of the owner of the shop and relying on the Jagannath Sahu 's 252 case (1973)(2) Cuttack Weekly Reporter, 1536. The High Court on appeal confirmed the acquittal order of the trial court. On the question, whether it was necessary that the respondent should be the owner of the shop for being prose cuted for the offences section 16(1)(a)(i) read with section 7(1) of the Act, allowing the appeal filed by the State, this Court, HELD: 1. The Act is a welfare legislation to prevent health hazards by consuming adulterated food. The mens tea is not an essential ingredient. It is a social evil and the Act prohibits commission of the offences under the Act. The essential ingredient is sale to the purchaser by the vendor. It is not material to establish the capacity of the person vis a vis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop. It is enough for the prosecution to establish that the person, who sold the adulterated article of food had sold it to the purchaser (including the Food Inspector ) and that Food Inspector purchased the same in strict compliance with the provisions of the Act. [256 BC] 2. The sanctioning authority has to consider the mate rial placed before it whether the offence of adulteration of food was committed and punishable under the Act. Once that satisfaction is reached and the authority is competent to grant the sanction, the sanction is valid. It is not neces sary for the sanctioning authority to consider that the person sold is the owner, servant, agent or partner or relative of the owner or was duly authorised in this behalf. [256 C D] 3. Grant of sanction to prosecute for an offence under the Act is a condition precedent. If no valid sanction was granted by the authority, certainly the accused is entitled to the benefit of statutory infraction, though it is techni cal and be acquitted of the offence. The relevant criteria under section 20(1) is the competence of the officer to grant the sanction for the offence. it does not postulate whether the person sold should be the owner or a servant or a person on behalf of the owner (son of the owner). [255 A] 4. No 'person ' shall himself or any person on his behalf manufacture for sale, or store or sell or distribute any adulterated food etc. The phrase "himself or any person on his behalf" obviously included any other person like servant, son, father or agent irre 253 spective of the relationship legal or jural etc. The person so sold during the course of business either the owner or the person that sold the adulterated food or article of food or both are liable to prosecution. [255 B C] 5. If the article sold by a vendor is not of the na ture, substance or quality demanded by the purchaser, who is to purchase, the article is adulterated. If the quality or variety of the article fall below the prescribed standard of its constituents are present in quantities not within the prescribed limits of variability, is also adulterated. The food or article of food is adulterated, if it is not of the nature, substance or quality demanded by the purchaser and sold by the seller and is to his prejudice, or contains any foreign substance in excess of its prescribed limit, so as to effect injuriously, the nature, substance or quality thereof. The word 'adulterated ' was used widely. [254 F] 6. As 15 years have passed by from the date of the offence, the ends of justice may not serve to send the respondent to imprisonment. Suffice that he bas undergone, all these years, the agony of the prosecution. In the cir cumstances a sentence of fine of a sum of Rs.500 is imposed, in default the imprisonment for a period of one month. [256 G] Jagannath Sahu vs Food Inspector, Jaipur Municipality, 1973(2) Cuttack Weekly Reporter 1556, overruled. Sarjoo Prasad vs The State of U.P., [1961] 3 S.C.R. 324; Ibrahim Haji Moideen & Anr. vs Food Inspector & Ant., 1976 (2) All India Prevention of Food Adulteration Cases 66, referred to.

Appeal No. 167 of 1955. section N. Kherdekar, N. K. Kherdekar and A. G. Ratna. parkhi, for the appellant. N. C. Chatterjee, section A. Sohni and Ganpat Rai, for respondent No. 1. 1960. August 23. The Judgment of the Court was delivered by KAPUR J. This is an appeal by special leave against the judgment and decree of the High Court at Nagpur passed in second appeal No. 1720 of 1945 confirming the decree of the District Judge. In the suit out of which this appeal has arisen the appellant was defendant No. 1 and the respondents were the plaintiff and defendant Nos. 2 and 3 and the dispute relates to pre emption on the ground of co occupancy which falls under Ch.XIV of the Berar Land Revenue Code, 1928, hereinafter called the Code. On April 10, 1943, D. B. Ghaisas and his mother Ramabai entered into two contracts of sale with the appellant, one in regard to Survey Nos. 5, 14 and 16 for a sum of Rs. 10,000 out of which Rs. 2,000 was paid as earnest money and the other in regard to Survey No. 15/1 for Rs. 8,500 out of which Rs. 500 was paid as earnest money. On April 16, 1943, the vendors executed a registered sale deed in regard to Survey No,%.5, 14 and 16 and the balance of the price 32 250 was paid before the Registrar. On April 22, 1943, the vendors executed a lease of Survey No. 15/1 for 14 years in favour of Kisanlal and Sitaram who were defendant Nos. 2 and 3 in the suit and are respondents Nos. 2 and 3 in this appeal. On April 24, 1943, the vendors executed a fresh agreement of sale in respect of the same field which according to the agreement was to be diverted to non agricultural purposes and thereafter a sale deed was to be executed when it was so diverted. The appellant was to pay the costs of the diversion as well as the premium. In pursuance of this agreement the vendors applied to the Deputy Commissioner, Akola, on August 12, 1943, for diver sion under section 58 of the Code and sanction was accorded on January 22, 1944, subject to payment of premium of Rs. 9,222 and other conditions. The appellant 's case is that as agreed the vendors were paid this money for deposit and it was deposited in the Treasury under Challan No. 68 but there is no finding in favour of the appellant although the trial court and the District Judge seem to have proceeded on the premises that this amount was deposited but in the cir cumstances of this case it is not necessary to go into this matter. On September 11, 1943, i.e., before the sale deed was executed the respondent, Sridhar, brought a suit for pre emption against the appellant on the allegation that he had a co occupancy in the Survey number in dispute being the owner of Survey No. 15/2. In the plaint it was alleged that the transaction of contract under the documents of April 10, 1943, and April 24, 1943, constituted a sale and therefore it was subject to respondent Sridhar 's prior right of pre emption. It was also alleged that the price was not fixed in good faith. These allegations were denied. Both the trial court and the District Judge held that respondent Sridhar was entitled to preempt and determined the fair consideration to be Rs. 3,306. The suit was therefore decreed by the trial court and on appeal by the District Judge. The appellant took an appeal to the 251 High Court which also confirmed the decree of the subordinate courts. The decree of the subordinate courts was Confirmed and against that judgment the appellant has come to this court in appeal by special leave. The first question for decision is whether a right of pre emption had accrued to respondent Sridbar under the provisions of the Code. Previous to the cession of Berar by the Nizam of Hyderabad to the British Government in 1853, the Mohammedan rule of preemption was, according to one view, in force in the province of Berar and it continued to be so till the Berar Land Revenue Code of 1896 came into operation as from January 1, 1897. On the other hand, according to the view of two writers on the Berar Land Revenue Code of 1896, the Mohammedan law origin of the right of pre emption does not seem to be well founded. In the annotation of the Berar Land Revenue Code of 1896 Mr. E. section Reynolds wrote in 1896 that although the right of pre emption in regard to agricultural land on occupancy tenures bad been recognised in Berar the right was not based on Mohammedan law nor did it appear to be ancient and immemorial custom. According to Hirurkar (Land Revenue Code, pp.126 127) also the right of pre emption was not based on the Mohammedan law and did not originally exist in Berar. It 252 seems to have been brought from the land laws of the Punjab or the North West Provinces. In the Berar Settlement Rules and Berar Sub tenancy Rules of 1866 the right of pre emption attached to relinquishment of shares in the case of ryots of joint holdings and applied to co sharers and this is different from the rule of Mohammedan law. By section 205 of the Berar Land Revenue Code of 1896 the right of pre emption arose when a co occupant in any Survey number was transferred by sale, foreclosure of mortgage or relinquishment in favour of a specified person for valuable consideration and it vested in every other co occupant of the Survey number. It will thus be seen that the right of pre emption, which under Mohammedan law attaches to sales only, was also applicable to foreclosure of mortgages and relinquishment for valuable consideration. In the year 1907 the Transfer of Property Act (IV of 1882) was extended to the province of Berar. In 1928, the Code was re enacted and it further extended the provisions in regard to pre emption in Ch. Under section 174 pre emptive rights arise in respect of transfers of unalienated land held for agricultural purposes and before an occupant could transfer the whole or any portion of his interest he had to give notice of his intention to all other occupants. Under sections 176 to 178, the right of pre emption arises in the case of transfers by way of sale, usufructuary mortgages, by lease for a period exceeding fifteen years or in the case of final decrees for foreclosure in a case of mortgage by conditional sale. Under a. 183 every occupant in Survey number shall have the right to pre empt the interest transferred by civil suit. Under section 184 the right also arises in the case of an exchange. Thus it will be seen that the right of pre emption has been by statute extended far beyond what was contemplated under Mohammedan law and also beyond what was recognised in the Berar Settlement Rules, Berar Subtenancy Rules and in the Code of 1896. The High Court held that the word sale in section 176 of the Code had a wider connotation than what it had under section 54 of the Transfer of Property. That 253 was based on the judgment of Vivian Bose, J. (as he then was), in Jainarayan Ramgopal Marwadi vs Balwant Maroti Shingore (1) which had been approved in later judgments of that court. It was also of the opinion that the transaction in dispute gave rise to the exercise of the right of pre emption under the rule laid down in Begum vs Mohammad Yakub (2) and as in the instant case there was in reality a sale although a registered sale deed had not been executed the right of pre emption could not be defeated by the device that the vendors and the appellant adopted. According to section 2 of the Transfer of Property Act which at the relevant time was in operation in Berar section 54 is not one of the sections within ch. 2 of that Act and therefore it overrides Mohammedan law and the provisions of that section, being exhaustive as to modes of transfer, govern all sales in that province and no title passes on a sale except as provided in that section. Sale is there defined as transfer of ownership for a price paid or promised or part paid or part promised and in the case of sale of tangible immoveable property of Rs. 100/ or more sale can only be made by a registered instrument. That is clear from the language of the section itself where it is stated : Section 54 Sale how made: " Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument ". It was held by the Privy Council in Immudipattam Thirugnana section O. Kondema Naik vs Peria Dorasami (3) which was a case of a zamindari estate that it could not be transferred except by a registered instrument. But it was submitted that sale when used in connection with the general law of pre emption is not to be construed in the narrow sense in which it is used in the Transfer of Property Act and that that had been accepted by the Judicial Committee in Sitaram Bhaurao Deshmukh vs Jiaul Hasan Sirajul Khan(4) where (1) A.I.R. 1939 Nag. (3) (1900) 28 I.A. 46. (2) All. 344. (4) (1921) 48 I.A. 475. 254 the observations of Sir John Edge, C. J., in Begum vs Mohammad Yakub (1) had been approved. In Sitaram Deshmukh 's case (2) one of the two Mohammedan co sharers in Bombay by an agreement dated October 14, 1908, agreed to sell his share to a Hindu. The agreement was expressly subject to a right 'in the co sharer to pre empt. The vendor informed his co sharer that he had sold his share and the latter thereupon, after the customary formalities on October 15, 1908, claimed to recover the share from the pur chaser. The sale deed was executed on November 9, 1908, and then a suit was filed by the pre emptor. It was held that the co sharer had the right to pre empt in accordance with the intention expressed by the parties to the sale and that intention was to be looked at to determine what system of law was to apply and what was to be taken to be the date of the sale with reference to which the formalities were performed. The question there really was as to what was to be taken as a sale sufficient to justify the pre emptor in proceeding at once to the ceremonies and it was in that connection that the following observation of Sir John Edge in Begum vs Mohammad Yakub (1) were quoted : " The Chief Justice, Sir John Edge, there observes, in connection with the question whether the Transfer of Property Act, which required registration, bad altered the principle of the Mohammedan Law, which determined what was a sale for the purposes of the date in reference to which the ceremonies should be performed; " I cannot think that it was the intention of the Legislature in passing Act No. IV of 1882 " (the Transfer of Property Act) " to alter directly or indirectly the Mohammedan law of pre emption as it existed and was understood for centuries prior to the passing of Act IV of 1882 ". That at all events is in harmony with the conclusion come to by the High Court at Bombay. The conclusion is, that you are to look at the intention of the parties in determining what system of law was to be taken as applying and what was to be taken to be (1) All. 344.(2) (1921) 48 I.A. 475.255 the date of the sale with reference to which the ceremonies were performed " But it was argued for the respondents that the Privy Council had not only approved the observation of Sir John Edge, C. J., in Begum vs Mohammad Yakub(1) but has also approved the view of the Calcutta High Court in Jadu Lal Sahu vs Janki Koer (2). That was a case from Bihar where the right of pre emption under Mohammedan Law was judicially recognised in regard to Hindus also. The question whether the sale which was to be preempted was the one under section 54 of the Transfer of Property Act or the one under the principles of Mohmmedan Law does not seem to have been the point raised in that case. In the latter case the kabala was on July 28, 1904 and the ceremonies were performed after that date. In the Allahabad case, Begum vs Mohammad Yakub (1), there was a verbal sale of a house which was followed by possession but there was no registered document. No doubt there the learned Chief Justice in the majority judgment did say that to import into the Mohammedan Law of pre emption the definition of the word " sale " with restrictions contained in section 54 of the Transfer of Property Act would materially alter Mohammedan Law of preemption and afford fraudulent persons to avoid the law of pre emption; with this view Bannerji, J., did Dot agree. Mahmood, J., in Janki vs Girjadat (4) though in a minority (four judges took a different view) was of the opinion that a valid and (1) All. 344. (2) Cal. (3) (1921) 48 I.A. 475. (4) All. 256 perfected sale was a condition precedent to the exercise of the right of pre emption and until such sale had been effected the right of pre emption could not arise. Section 17 read with section 49 of the Registration Act shows that a transfer of immoveable property where it is worth Rs. 100 or more requires registration and unless so registered the document does not affect the property and cannot be received in evidence. The following observations of Mahmood, J., from Janki vs Girjadat (1) are very apposite: " If a valid and perfected sale were not a condi tion precedent to the exercise of the pre emptive right, consequences would follow which the law of pre emption does not contemplate or provide for. In this very case, supposing the so called vendor, notwithstanding the application of the 15th August, 1882 (which cannot amount to an estoppel under the circumstances) continues or recenters into possession of the property it is clear that the so called vendee would have no, title under the so called sale, to enable him to recover possession the transaction being, by reason of section 54 of the Transfer of Property Act, ineffectual as transfer of ownership. The right of pre emption being only a right of substitution, the successful pre emptor 's title is necessarily the same as that of the vendee and if the vendee took nothing under the sale the preemptor can take nothing either; and it follows that if the vendee could not oust the vendor, the preemptor could not do so either, because in both cases the question would necessarily arise whether the sale was valid in the sense of transferring ownership. Again, if notwithstanding a pre emptive suit such as this, the so called vendor, who has executed an invalid sale which does not in law divest him of the proprietary right, subsequently executes a valid and registered sale deed in favour of a co sharer other than the preemptor or in favour of a purchaser for value without notice of the so called contract for sale it is difficult to conceive how the preemptor, who has succeeded in a suit like the present, could resist the claim of such purchaser for possession of the property ". (1) All. 257 Under section 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immoveable property and consequently the contract in the instant case created no interest in favour of the vendee and the proprietary title did not validly pass from the vendors to the vendee and until that was completed no right to enforce pre emption arose. As we have said earlier wherever the Transfer of Property Act is in force Mohammedan Law or any other personal law is inapplicable to transfers and no title passes except in accordance with that Act. Therefore when the suit was brought there was no transfer by way of sale which could be subject to preemption. It was next contended that the appellant was guilty of fraud in that in order to defeat the right of the preemptors a deed of sale was not executed although as a matter of fact price had been paid, possession had passed and for all intents and purposes the appellant had become the owner of the property and that conduct such as this would defeat the very law of preemption. The right to pre empt the sale is not exercisable till a pre emptible transfer has been effected and the right of pre emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre emption by all legitimate means. In the Punjab where the right of pre emption is also statutory the courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right of pre emption by any lawful means and this view has been accepted by this court in Bishan Singh vs Khazan Singh (7) where Subba Rao, J., observed: " The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place ". In the present case the transaction of sale had not (7) ; ,884. 33 258 been completed until February 1, 1944, when the sale deed was executed. There are no equities in favour of a pre emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre emption by all lawful means. It was then submitted that the sale deed had as a matter of fact, been executed on February 1, 1944; but respondent Sridhar brought the suit not on the cause of action arising on the sale dated February 1, 1944, but on the transaction of April 10, 1943, coupled with that of April 24, 1943, which being mere contracts of sale created no interest in the vendee and there was no right of pre emption in respondent No. I which could be enforced under the Code. Mr. Chatterji urged that it did not matter if the sale took place later and the suit was brought earlier but the suit as laid down was one to pre empt a sale of April 1943 when, as a matter of fact, no sale had taken place. If respondent Sridhar had based his right of pre emption on the basis of the sale of February 1, 1944, the appellant would have taken such defence as the law allowed him. The defence in regard to the conversion of the land from agricultural into non agricultural site which negatives the right of pre emption would then have become a very important issue in the case and the appellant would have adduced proper proof in regard to it. The right of pre emption is a weak right and is not looked upon with favour by courts and therefore the courts could not go out of their way to help the pre emptor. In our opinion the judgment of the High Court was erroneous and we would therefore allow this appeal, set aside the judgment and decree of the High Court and dismiss the suit with costs throughout.

An application for execution of a decree was made after the expiry of 12 'years from the date of the decree and 3 years from the date of the final order on the last previous application for execution. The decree holder contended that the judgment debtor had "fraudulently purchased a business in the name of a stranger and had conducted the same in the name of the latter with a view to prevent the assets of the business from being proceeded against in execution by the decree holder and that therefore under section 48 of the Civil Procedure Code he was entitled to make an application even after the expiry of 19, years. The High Court found that, as the decree holder was prevented by the fraud of the judgment debtor from executing the decree, the application was not barred under section 48 of the Code, but as it was made more than 3 years from the date of the order on the last application it was barred under article 182 of the Limitation Act. The decree holder appealed contending for the first time before the Supreme Court as fraud for the purpose of section 48 of Civil Procedure Code was proved, section 18 of the Limita tion Act was applicable to the case and his application was not barred under article 189. as it was made within three years of the date when he became aware of the fraud and the proper article applicable was article 181: Held, (i) that the question whether on the proved facts section 18 was applicable to the case was a pure question of law and the decree holder was entitled to raise the question before the Supreme Court, even though he had not raised it before the lower courts; (ii) though section 48, Civil Procedure Code, and articles 181 and 189. of the Limitation Act dealt with the time limit for making applications for execution of decrees and should be read together, they were different in their scope and object, and the fact that the application was not barred under section 48, Civil Procedure Code, did not obviate the necessity of considering whether it was barred 853 under article 182; (iii) that, as the fraud committed by the judgment debtor did not in any way conceal from the decree holder the knowledge of his right to make an application for execution of , the decree but only prevented him from exer cising that right in respect of a particular property, section 18 had no application to the case, and the application was therefore barred under article 182 of the Limitation Act; (iv) the fact that there was no provision in article 182 for cases where the judgment debtor had committed a fraud as in the present case did not render that article inapplicable and bring the case within the purview of article 181 as article 182 has to be read with the general provisions contained in s.18 relating to eases where there is fraud. Held also, (i) A decree which provides that the plain tiff should pay the deficient court fees before executing the decree is not a conditional decree and time for making an application for execution of such a decree runs from the date of the decree, and not from the date on which the plaintiff pays the deficit court fees. (ii) The period of time during which the decree holder was prosecuting proceedings for adjudging the judgment debtor an insolvent cannot be excluded under 6.14 (2) of Limitation Act, in computing the period of limitation for making an application for executing the decree. Judgment of the Bombay High Court affirmed.

Appeal No. 2471 of 1972. Appeal by Special Leave from the Judgment and Order dated the 28th March 1972 of the Delhi High Court in Civil Writ No. 179/72. M.K. Ramamurthi, K.B. Rohatagi, V.K. Jain and M.M. Kashyap, for the Appellant. S.N. Andley, B.P. Maheshwari and Suresh Sethi, for the Respondents. The Judgment of the Court was delivered by JASWANT SINGH, J. This appeal by special leave is di rected against the judgment and order dated March 28, 1972 of the High Court of Delhi dismissing in limine the writ petition filed by the appellant herein. The facts essential for the purpose of this appeal are: The appellant was appointed as an Assistant Teacher on temporary basis in the pay scale of Rs. 68 170, which was subsequently revised to Rs. 118 225, in the Primary School, Northern Railway Colony II run by the Education Department of the Municipal Corporation of Delhi, with effect from October 1, 1958. He was confirmed on the said post on September 30, 1959. On August 28, 1964, he was transferred to the Senior Basic Middle School of the Corporation in Panna Mamirpur, Narela 11. In September, 1967, he was assigned the work of teaching certain subjects to both the sections of Class V. In section A of Class V, there 200 was at that time a student named Surinder Kumar, son of Dhan Raj. On September 6, 1967, Dhan Raj made a written complaint to the Education Officer of the Corporation, a copy of which he endorsed to the Head Master of the School, alleging therein that the appellant bad sensually misbehaved with his son, Surinder Kumar in the School Premises during the recess time on 2nd and 4th September, 1967. On October 5, 1967, the Education Officer suspended the appellant. On April 15, 1968, the Assistant Education Officer, Rural North Zone, was directed by his superior to prepare a charge sheet against the appellant whereupon a charge sheet was drawn up and served on the latter on November '16, 1968. Therefore, the Director of Inquiries, who was deputed to enquire into the matter proceeded to hold the enquiry and on consideration of the evidence adduced before him, he submitted a report on May 20, 1969, holding that the charge levelled against the appellant had been established. On receipt of the report and perusal thereof, the Deputy Commissioner, Education of the Corporation passed the following order on May 20, 1969: "I have gone through the report of the Inquiry Officer and agree with his findings. The Inquiry Officer has held the charge of committing an immoral act with a student of Class V, levelled against Shri Tara Chand Khatri, A/T (Respondent) as proved. Such an act on the part of a teacher is most unbecoming, serious and reprehensible. I propose to impose the penalty of 'dismissal ' from service which shall be a disqualification for future employment on the respondent." Consequent upon the passing of this order, a notice was issued to the appellant requiring him to show cause why the penalty of dismissal from service be not imposed on him. On July 11, 1969, the appellant submitted his representation in reply to the show cause notice. By order dated July 30, 1968, the Deputy Commissioner, rejected the representation of the appellant and imposed the penalty of dismissal from service upon him. Aggrieved by this order, the appellant preferred an appeal to the Commissioner of the Corporation on August 29, 1969, under regulation 11 of the Delhi Munici pal Corporation Service (Control and Appeal) Regulations, 1959 (hereinafter referred to as 'the Regulations ') Which was rejected by the Commissioner on September 13, 1969. On October 11, 1971, the appellant filed Civil Writ Petition No. 1032 of 1969 in the High Court of Delhi challenging the aforesaid order of his dismissal from service. 'The High Court allowed the petition on the ground that the order of the Appellate Authority was made in violation of the re quirements of regulation 15 of the Regulations and directed the Appellate ' Authority to dispose of the appeal afresh on merits keeping in view all the facts and circumstances of the case as also the requirements of Regulation 15 of ' the Regulation. While disposing of the writ petition, the learned Judge added that if the appellant still felt ag grieved by the decision of the Appellate Authority he would be at liberty in appropriate proceedings not only to chal lenge the order of the Appellate Authority but the order of the disciplinary authority as well. On remand, the Commis sioner of the Corporation who happened to be an officer different from the. one who rejected the appellant 's appeal on the former occasion heard the appe 201 llant at considerable length but rejected the appeal by an elaborate order dated January 5, 1972. The appellant thereupon filed writ petition No. 179 of 1972 in the High Court of Delhi challenging the order dated July 30, 1969 of the Deputy Commissioner, Education, as well as the order of the Appellate Authority dated January 5, 1972. This petition was, as already stated, summarily dismissed without the issue of a notice to the respondents. The appellant then made an application to the High Court for leave to appeal to this Court but the same was also rejected. Appearing in support of the appeal, Mr. Ramamurthi has vehemently contended that the appointing authority of the appellant being the Commissioner under section 92 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act '), his dismissal from service by the Deputy Commissioner (Education) an authority subordinate to the Commissioner is illegal. The counsel has next urged that regulation 7 of the Regulations and the Schedule referred to therein conferring power on the Deputy Commissioner to dismiss a municipal officer or other employee drawing a monthly salary of less than Rs. 350/ being inconsistent with section 95 of the Act is void and consequently the impugned order of the appellant 's dismissal from service passed in exercise of that power is also illegal and invalid. The counsel has further contended that the impugned order of the appellant 's dismissal from service being a quasi judicial order is vitiated as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation 8(9) of the Regulations nor has it given its reasons for passing the order. The counsel has lastly urged that the High Court ought not. to have dismissed the petition in limine without calling upon the respondents to file the return as it raised not only arguable points of law but also contained allegations of male fides against the respondents. We shall deal with these points seriatim. But before embarking on that task, we consider it apposite to, refer to a few provisions of the Act and regulations which have an important bearing on the case. Under section 92(1)(b) of the Act, as in force at the relevant time the power of appointing municipal officers and other municipal employees whether temporary or permanent, to posts carrying a minimum monthly salary (exclusive of allow ances) of less than three hundred and fifty rupees was vested in the Commissioner. Subsection (1)of section 95 of the Act provided that every municipal officer or other municipal employee shall be liable . . to be cen sured, reduced in rank, compulsorily retired, removed or dismissed for any breach of any departmental regulations or of discipline or for carelessness, unfitness, neglect of duty or other misconduct by such authority as may be. pre scribed by regulations. The first proviso. to this sub section, however, contained the following rider: "Provided that no such officer or other employee as aforesaid shall be reduced in rank, compulsorily retired, removed or dismissed by any authority subordinate to that by which he was appointed. " 202 Section 491 of the Act which is in the nature of an enabling provision provided as under: "The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this Act shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercised and performed also by any officer or other municipal employee specified in the order. " It is admitted by the appellant that in: exercise of the power conferred on him under section 491 of the Act, the Commissioner had vide his order No. (1)58 Law Corp 1 dated April 7, 1958, directed that all the powers conferred on him under the various provisions of. the Act would be exercised also by the Deputy Commissioner subject to his supervision, control and revision. Regulation 7 of the Regulations and the Schedule referred to therein read as under: "Regulation 7: The authority specified in column 1 of the Schedule may impose on any of the municipal officers. or other municipal employees specified there against in column 2 thereof any of the penalties specified there against in column 3 thereof. Any such officer or employee may appeal against the order imposing upon him any of those penalties to the authority specified in column 4 of the said Schedule." SCHEDULE Description of posts Authority Penalties Appellate competent Authority to impose penalties Posts whose minimum Deputy All Commissioner monthly salary (exclu Commissioner sive of allowances) is less than three hund red and fifty rupees. Any municipal officer (i) & (ii) Deputy Co or employee mmissioner to whom po wers to im pose penal ties is de legated under section 491. It would also be advantageous to refer to regulation 8 of the Regulations in so far as it is relevant for the purpose of this appeal. "Regulation 8: . . . 203 (9) The Disciplinary Authority, shall, if it is not the Inquiring Authority, consider the record ' of inquiry and record its findings on each charge. (10) If the Disciplinary Authority, having regard to its findings on the charges, is. of the opinion that any of the penalties specified in regulation 6 should be imposed, it shall : (a) furnish to the municipal officer or other municipal employee a copy of the report of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and, (b) give him a notice stating the action proposed to. be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action. (11) The Disciplinary Authority shall consider the representation, if any, made by the municipal officer or other municipal employee in response to the notice under subregulation (10) and determine what penalty, if any, should be imposed on the municipal officer or other municipal employee and pass appropriate orders on the case. (12) Orders passed by the Disciplinary Authority shall be communicated to the municipal officer or other municipal employee who shall also be supplied with a copy of the report of the Inquiring Authority and where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority, unless they have already been supplied to him. " Having noticed the relevant provisions, we now pass on to. consider the contentions raised on behalf of the appel lant. Adverting to the first two contentions raised before us on behalf of the appellant, it may be stated that neither of them appear from the record to have been raised before the High Court. It was not the case of the appellant in the petition filed, by him under Article 226 of the Consti tution that since his appointment as an Assistant Teacher was actually made by the Commissioner, the Deputy Commis sioner was. not competent to dismiss him from service. What was asserted by him at that stage is contained in ground No. VI of the petition and ' may be reproduced below for facility of reference: "Because in any. case, respondent No. 3 has no jurisdiction to hear the appeal. Under section 92 of the Delhi Municipal Corporation Act, 1957, the petitioner could be 204 appointed only by the Commissioner and under section 95 of the said Act, he should be the dismissing authority. In the present case, however, the Commissioner had by notification under section 491 of the said Act, delegated his power to the Deputy Commissioner under Circular NO. 4(1)/8 Law Corp. 1 dated 7.4.1958. The dismissing order was made by the Deputy Commissioner as delegatee i.e. as exercising the powers of the Commissioner. The Commissioner, therefore, could not sit in appeal on such an order. Only the Standing Committee of the Corporation could have heard the appeal. " The omission to make the aforesaid averments in the writ petition regarding the incompetence of the Deputy Commis sioner to pass the impugned order of dismissal from service and invalidity. of regulation 7 of the Regulations appears to be due to the. fact that the appellant fully realised that none of these pleas could be tenable in view of the aforesaid order No. (1) 58 Law Corp. 1 dated April 7, 1958 made by the Commissioner delegating all his powers to the Deputy Commissioner his actual appointment as an Assistant Teacher by the Deputy Commissioner and regulation 7 of the Regulations which far from being repugnant to section,, 95 of the Act is perfectly consistent with it as sub section (1 ) of that section itself makes a municipal employee liable to be compulsorily retired, removed or dismissed etc. by such authority as may be prescribed by the Regulation. The prohibition contained in the first proviso to this Sub section is confined in its operation only to a case where an officer or employee of the Corporation is retired, re moved or dismissed by an authority subordinate to that by which he was appointed. In the instant case, 'the appel lant 's appointment having been made by the Deputy Commis sioner, who possessed plenary powers in., that behalf by virtue of the aforesaid delegation order, there was; neither any legal bar to the appellant 's dismissal from service by that very authority nor a breach of the first proviso to sub section (1 ) of section 95 of the Act. The decision of this Court in The Management of D.T.U.v. Shri B.B.L. Halelay & Anr.(1) sought to be relied upon by Mr. Ramamurthi related to an appointment which rested on a deeming provision and is not at all helpful to the appel lant. Rospondent No. 2 in that case was Originally employed as a driver in the Delhi Road Transport Authority which had been constituted under the Delhi Road Transport Authority Act, 1950. By section 516(1)(a) of the Delhi Municipal Corporation Act,1957 which came into force in January, 1958, the Delhi Road Transport Authority Act, 1950, was repealed and the functions of the Delhi Road Transport Authority were taken over by the Corporation by virtue of several other provisions of the Act. Under section 511 of that Act i.e. the Delhi Municipal Corporation Act, 1957, every officer and employee of the Transport Authority including respondent No,. 2 stood transferred and become an officer and employee of the Corporation and under section 92(1) (b) read with section 516(2) (a) of the Act, the said respondent was (1) ; 205 to be deemed to have been appointed by the General Manager (Transport). The respondent in that case thus being re quired by fiction of law to b,e taken to have been appointed by the General Manager, he could not have been removed from service in May, 1963 by the Assistant General Manager an authority subordinate to the General Manager in view of the first.proviso to sub section (1) of section 95 of the Act despite the fact that the functions of the General Manager had been delegated to the Assistant General Manager in May, 1961. In that case, it was made clear by this Court that the only consequence of the delegation order was that if after 1961, the Assistant General Manager had made the appointment of respondent No. 2, he would have no doubt been entitled to remove him from service but the position had to be deter mined with reference to the time, when he was absorbed in the Corporation which was in January, 1958. The judgment of this Court in. Municipal Corporation of Delhi vs Ram Pratap Singh(1) is also not helpful to the appellant as in that case, the appointment was in fact made by the Commissioner white the dismissal was by the Deputy Commissioner. In view of the foregoing discussion, the first two contentions raised on behalf of the appellant which are totally misconceived are repelled. The third contention advanced by Mr. Ramamurthi that the impugned order of the appellant 's dismissal from service is vitiated 'as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation 8(9) of the Regulations nor has it given its reasons for passing the order cannot also, be countenanced as. it overlooks the decisions of this Court, which fully cover the case. Regarding the first limb of the contention, it may be stated that although it may be necessary for the discipli nary authority to record. its provisional conclusions in the notice calling upto the delinquent officer to, show cause why the. proposed punishment be not imposed upon him if it differs from the findings arrived at b,y the enquiring officer with regard to the charge, it is not obligatory to do so in case the disciplinary authority concurs with the findings of the enquiring officer. We are supported in this view by two decisions of this Court in State of Orissa vs Govinddas Panda(2) and State of Assam & Anr. vs Bimal Kumar Pandit(3). In Govinddas Panda 's case (supra) where the notice issued under ' Article 311(2) did not expressly state. that the State Government had accepted the findings record ed by the enquiring officer against the Government servant in question and where even the nature of the punishment which was proposed to be inflicted on. him was not specifi cally and clearly indicated, this Court while reversing the conclusions of the Orissa, High Court that the notice was defective and so that provisions of Article 311(2) had been contravened observed: (1) C.A. No. 2249 (N.) of 1969 decided on 8 1 1976. (2) C.A. No. 412 of 1958 decided on 10 12 1962. (3) ; 206 "In the context, it must have been obvious to the respondent that the punishment proposed was removal from service and the respondent was called upon to show cause against that punishment. On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service." In Bimal Kumar Pandit 's case (supra) while, reversing the judgment and order of the High Court allowing the writ petition filed by the respondent against his reduction in rank on the ground that the notice served upon him under Article 311 (2) of the Constitution was void as it did not expressly and specifically indicate either the conclusions of the dismissing authority or the findings recorded by the enquiring officer or that the dismissing authority accepted the findings of the enquiring officer and unless that course was adopted, it would not be clear that the dismissing authority had applied its mind and had provisionally come to some conclusion both in regard to the guilt of the public officer and the punishment which his misconduct deserved the Constitution Bench of this Court observed: "It may be conceded that it is desirable that the dismissing authority should indicate in the second notice its concurrence with the conclusions of the enquiring officer before it issues the said notice under Article 311(2). But the question which calls for our decision is it the dismissing authority does not expressly say that it has accepted the findings of the enquiring officer against the delinquent officer, does that introduce such an infirmity in the proceedings as to make the final order invalid ? We are not prepared to answer this question in the affirmative. It seems to us that it would be plain to the delinquent officer that the issuance of the notice indicating the provisional conclusions of the dismissing authority as to the punishment that should be imposed on him obviously and clearly implies that the findings recorded against him by the enquiring officer have been accepted by the dismissing authority; otherwise there would be no sense or purpose in issuing the notice under Article 311(2). " At another place, the Court observed: "We ought, however, to all that if, the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311 (2). In 207 such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter; but if the dismissing au thority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under article 311(2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the. notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such. cases a statement to that effect should be made. But we do not think that the words in article 311 (2) justify the view that the failure to make such a statement amounts to. contravention of article 311(2) . . There is no doubt that after the report is received, appropriate authority must apply its mind to the report and must provisionally decide whether the findings recorded in the report should be accepted or not. It is only if the findings recorded in the report against the Government servant are accepted by the appropriate authority that it has to provisionally decide what action should be taken against him. But this does not mean that in every case, the appropriate authority is under a constitutional obligation to state in the notice that it has accepted the adverse findings recorded by the enquiring officer before it indicates the nature of the action proposed to be taken against the delinquent officer. " In the instant case, the incorrectness of the first limb of the contention is apparent from a bare reading of the aforesaid order passed 208 by the Deputy Commissioner on May 20, 1969 which clearly states that he agrees with the findings of the enquiring officer. Reading the order as a whole, it becomes crystal clear that the disciplinary authority held the charge drawn up against the appellant as proved. The second limb of the third contention raised on behalf of the appellant which also overlooks the decisions of the Constitution Bench this Court does not commend itself to us. In this connection, we would like to make it clear that while it may be necessary for a disciplinary or admin istrative authority exercising quasi judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons. It cannot also, in our opinion, be laid down as a general rule that an order is a non speaking order simply because it is brief and not daborate. Every case, we think, has to be judged in the light of its own facts and circumstances. Reference in this connection may be made with advantage to a catena of decisions. In Bimal Kurnar Pandit 's case (supra) it was categorically laid down by the Constitution Bench of this Court that it was not a requirement of Article 311(2) that in every case, the punishing authority should in its order requiring the civil servant to show cause give not only the punishment proposed to be inflicted on him but also the reasons for coming to that conclusion. In that case, it was clarified that the view is not justified that the appropriate authority must state its own grounds or reasons for proposing to take any specific action against the delin quent Government servant. In State of Madras vs A.R. Srinivasan(1) the Constitution Bench this Court while repelling the contention advanced on behalf of the respondent that the State Government 's order compulsorily retiring him from service was bad as it did not give reasons for accepting the findings. of the enquiring tribunal and imposing the penalty of compulsory retirement observed as follows: "Mr. Setalvad for the respondent attempted to argue that the impugned order gives no reasons why the appellant accepted the findings of the Tribunal. Disciplinary proceedings taken against the respondent, says Mr. Setalvad, are in the nature of quasi judicial proceedings and when the appellant passed the impugned order against the respondent, it was acting in a quasi judicial character. That being so, the appellant should have indicated some reasons as to why it accepted the findings of the Tribunal, and since no reasons are given, the order should be struck down on that ground alone. We are not prepared to accept the argument. In dealing with the question as to whether it is obligatory on the (1) A.I.R. 1966 S.C. 1827=(1966) 2 S.C.W.R. 524. 209 State Government to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact that the disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public Service Commission is consulted where necessary. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal. It is conceivable that if the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer, it should give reasons why it differs from the conclusions of the Tribunal, though even in such a case, it is not necessary that the reasons should be detailed or elaborate. But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, we do not think as a matter of law, it could be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it. The proceedings are, no doubt, quasi judicial, but having regard to the manner in which these enquiries are conducted, we do not think an obligation can be imposed on ' the State Government to record reasons in every case." In Som Datt Datta vs Union of India & Ors. (1) while approv ing the English law and practice and overruling 1he conten tion advanced on behalf of the petitioner that the orders of the Chief of the Army Staff confirming the proceedings of the Court Martial under section 164 of the Army Act and the order of the Central Government dismissing the appeal of the petitioner under section 165 of the Army Act were illegal and ultra vires as they did not give reasons in support Of the orders, the Constitution Bench of this Court summed up the legal position as follows : Apart from any requirement imposed by the statute or statutory rule either expressly or 'by necessary implication, there is no legal obligation that the statutory tribunal should give reasons for its decision. There is also no general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. In Madhya Pradesh Industries Ltd. vs Union of India & Ors.(2) this Court repelled the contention of counsel for the appellant that every order appealable under Article 1,36 of the Constitution must be a speak (1) [1969] S.C.R. 176. S.C.R. 466 A.I.R. 1458SCI/76 210 ing order and the omission to give reasons for the decision is of itself a sufficient ground for quashing it and held that an order of an administrative tribunal rejecting a revision application cannot be pronounced to be invalid on the sole ground that it does not give reasons for rejection. While distinguishing the case of Harinagar Sugar Mills Ltd. vs Shyam Sunder Jhunjhunwala(1) where the Central Government reversed the decision of the State Government without giving reasons for reversal, this Court pointed out that there was a vital difference between the order of reversal by the appellate authority and the order of affirmance by the revising authority and that if the revising authority re jects a revision application stating that there was no valid ground for interference with the order of the subordinate authority in such a case, it could not be held that the order was arbitrary or that there was no trial of the revi sion application. Subba Rao, J. (as he then was) speaking for himself in that case observed : "Ordinarily, the appellate or revisional tribunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons." In Judicial Review of Administrative Action (Second Edition), Prof. S.A. de Smith has observed at page 418 as follows : "If the record is incomplete (e.g. because reasons or findings of material fact are omitted), has the court power to order the tribunal to complete its record? It is common ground that the court has no inherent power to compel a tribunal to give reasons for its decisions . . If, of course, a tribunal is required by statute to declare its reasons or its findings on the material facts, an order of mandamus may be obtained to compel the tribunal to perform its legal duty . Where a tribunal that is not expressly obliged to give reasons for its decisions chooses not to give any reasons for a particular decision, it is not permissible to infer on that ground alone that its reasons for that decision were bad in law. Even if it gives reasons, which are ex facie insufficient in law to support its decision, the court will not necessarily assume that these are the sole reasons on which the tribunal has based its decision. (See Cf. Davies vs Price at 440 and R.v. Minister of Housing and Local Government, ex. P. Chichester R.D.C. Before concluding the discussion in regard to the third contention, we may point out that none of the decisions viz. Sardar Govindrao & Ors. vs State of Madhya Pradesh(2) Bhagat Raja vs The Union of India & Ors. (3) Travancore Rayon Ltd. vs Union of India(4) Mahabir Prasad Santosh Kumar vs State of U.P. & Ors.(5)Rangnath vs Daulat Rao & Ors. (6) and Siemens Engineering & Manufacturing Company of India Ltd. vs The Union of India(7) on which Mr. Ramamurthi has (1) ; (2) [1965] 1 S.C.R.678. (3) ; (4) ; (5) ; (6) ; (7) ; 211 heavily leaned has anything to do with disciplinary proceed ings. At such, they have little bearing on the point with which we are at present concerned. We would also like to point out that the observations in Travancore Rayon Ltd. vs Union of India (supra) that in Bhagat Raja vs The Union of India & Ors. (supra). , this Court in effect overruled the judgment of the majority in Madhya Pradesh Industries Ltd. vs Union of India & Ors. (supra) seem to have crept therein through some oversight. A careful perusal of the decision in Bhagat Raja vs The Union of India & Ors. (supra) would show that this Court did not make any observations therein which can be interpreted as overruling the. majority judgment in Madhya Pradesh Industries Ltd. vs Union of1 India & Ors. (supra). It is also worthy of note that in Bhagat Raja 's case (Supra), the amendment of rule 55 of the Mineral Concession Rules,1960 introduced in July, 1965 laid down a special procedure in regard to revisions. It required the Central Government to send copies of the application for revision to all the impleaded parties including the person to whom a lease had been granted calling upon them to make such comments as they might like to make within three months from the date of the issue of the communication and on receipt of the comments from any party to send copies thereof to the other parties calling upon them to make further comments as they might like to make within one month from the date of the issue of the communication. It also provided that the revision appli cation, the communications containing comments and counter comments referred to above would constitute the record of the case. Thus under the amended rule, the party whose application was rejected got an ample opportunity of showing to the Central Government by reference not only to the record which was before the State Government but by refer ence to the fresh material as well that the State Government was misled in its consideration of the matter or that its decision was based on irrelevant considerations. This is evident from the following observations made in Bhagat Raja vs The Union of India & Ors. (supra): "The old rule 55 was replaced by a new rule which came into force on 19th July, 1965. Whereas the old rule directed the Central Government to consider comments on the petition of review by the State Government or other authority only, the new rule is aimed at calling upon all the parties including the State Government to make their comments in the matter and the parties are given the right to make further comments on those made by the other or others. In effect, the parties are given a right to bring forth material which was not before the State Government. It is easy to see that an unsuccessful party may challenge the gram of a lease in favour of another by pointing out defects or demerits which did not come to the knowledge of the State Government. The order in this case does not even purport to ' show that the comments and counter comments which were before the Central Government in this case, had been considered. " The above observations leave no manner of doubt that it was in view of the amendment in rule 55 of the Mineral Concession Rules, 212 1960 that the decision in Bhagat Raja vs The Union of India & Ors. (supra) was different from Madhya Pradesh Industries Ltd. vs Union of India & Ors. (supra) which had been ren dered on the unamended rule 55 of the said Rules. In our opinion, therefore, the observations made in Madhya Pradesh Industries Ltd. vs Union of India & Ors. (supra) contain a correct statement of law. In view of the foregoing, we do not find any merit in the third contention raised on behalf of the appellant. This brings us to the last contention raised by Mr. Ramamurthi that the writ petition should not have been dismissed by the High Court in limine in view of the fact that it contained allegations of mala fides against the respondents. We are unable to accept this contention. It has been held time and again by this Court that the High Court would be justified in refusing to carry on investiga tion into the allegations of mala fides if necessary partic ulars of the charge making out a prima facie case are not given in the writ petition. Keeping in view the well estab lished rule that the burden of establishing mala fides lies very heavily on the person who alleges it and considering all the allegations made by the appellant in regard thereto, we do not think that they could be considered as sufficient to establish malus animus. The High Court was, therefore, not wrong in dismissing the petition in limine on seeing that a prima facie case requiring investigation had not been made out. In the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs. P.B.R. Appeal dismissed.

The appellant, a school teacher under the Delhi Munici pal Corporation. was dismissed from service by the Deputy Commissioner (Education) after following the procedure prescribed under the Regulations. His appeal to the Commis sioner of the Corporation was dismissed and his writ peti tion was dismissed in limine by the High Court. On further appeal to this Court it was contended that (I ) the order of dismissal was invalid for the reason that the Commissioner being the appointing authority, the Deputy Commissioner was incompetent to dismiss him and the regulation conferring power on the Deputy Commissioner to dismiss a municipal employee drawing less than Rs. 350 being inconsistent with section 95 of the Delhi Municipal Corporation Act 1957 is void; (2) since the disciplinary authority had neither recorded its findings nor given its reasons in the order of dismissal it is vitiated and (3) the petition should not have been dismissed in limine by the High Court. Dismissing the appeal, HELD: (1 ) The appellant 's appointment having been made by the Deputy Commissioner, who possessed plenary powers in that behalf by virtue of the delegation of power to him, there was neither any legal bar to 'his dismissal by that authority nor a breach of the first proviso to section 95(1). In his writ petition before the High Court the appellant failed to make any averment regarding the incompetence of the Deputy Commissioner to pass the impugned order and the invalidity of the regulation. None of his pleas was tenable in view of the order of the Commissioner delegating his powers to the Deputy Commissioner his actual appointment as an Assistant Teacher by the Deputy Commissioner and regula tion 7 being consistent with section 95(1) of the Act. [204 E&C] The Managment of D.T.U. vs Shri B.B.L. Hajeley & Ant. ; and Municipal Corporation of Delhi vs Ram Partap Singh (Civil Appeal No. 2449(N) of 1969 delivered on January 8, 1976), held inapplicable. (2)(a) Although it may be necessary for the disciplinary authority to record its provisional conclusions in the notice calling upon the delinquent officer to show cause why the proposed punishment be not imposed upon him if it dif fers from the findings arrived at by the enquiry officer with regard to the charge, it is not obligatory to do so in case the disciplinary authority concurs with the findings of the enquiring officer. [205 F] In the instant case it is apparent from the order of the Deputy Commissioner that he agreed with the findings of the Enquiring Officer. [208 A] State of Orissa vs Govinddas Pande (Civil Appeal No. 412 of 1958 decided on December 10, 1962) and State of Assam & Anr. vs Vimal Kumar Pandit A.I.R followed. (b) While it may be necessary for a disciplinary or administrative authority exercising quasi judicial functions to state the reasons, in support of its order if it differs from the conclusions arrived at and the recommendations made by 199 the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons. it cannot be laid down as a general rule that an order is a non speaking order simply because it is brief and not elabo rate. Every case has to be judged in the light of its own facts. [208 B] Sardar Govindrao & Ors. vs State of Madhya Pradesh ; , Bhagat Raja vs The Union of India & Ors. ; , Travancore Rayon Ltd. vs Union of India ; ; Mahabir Prasad Santosh Kumar vs State of U.P. & Ors. ; , Rangnath vs Daula trao & Ors. ; and The Siemens Engineering & Manufacturing Co. of India Ltd. vs TIre Union of India & Anr. ; , inapplicable. (c) M.P. Industries Ltd. vs Union of India ; contains a correct statement of law. In Bhagat Raja vs The Union of India, ; this Court did not make any observations which can be interpreted as overruling the majority judgment in the former case. In view of the amendment of r. 55 of the ' Mineral Concession Rules, 1960 the decision in Bhagat Raja 's case was differ ent from M.P. Industries case which had been rendered on the unamended r. 55 of the Rules. [212 A; 211 B] (3) The High Court was not wrong in dismissing the writ petition. in limine because a prima jacie case requiring investigation had not been made out by the appellant. The High Court would be justified in refusing to carry on inves tigation into the allegations of mala fides if necessary particulars of the charge making out a prima facie case are not given in the petition. Since the burden of establishing mala fides lies very heavily on the person who alleges them and the allegations made. in regard thereto, in the writ petition were not sufficient to establish malus animus. The High Court was justified in dismissing the petition without issuing notice to the other side. [212 C D]

Appeal No. 25 1966. Appeal by special leave from the judgment and decree dated ' January 2, 1963 of the Orissa High Court in Second Appeal No. 365 of 1960. V.D. Misra, for the appellant. N.C. Chatterjee and Sukumar Ghose, for the respondents Nos. 1 to 3 and 5 to 12. 564 The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the Orissa High Court in a second appeal whereby the High Court affirmed the decree and order passed by the First Additional Sub Judge, Cuttack, with modifications. The High Court held that "the restrictive order of the lower appellate court directing the plaintiffs to take out processions with a 'low sound music except drumbeating, is not justified" and directed the deletion of this portion from the order of the lower appellate court. In order to appreciate the points raised before us it is necessary to give a few facts and the findings of the court below. The plaintiffs, respondents before us and hereinafter referred to as the plaintiffs, brought this suit against the defendants, appellants before us and hereinafter referred to as the defendants, praying for a declaration that the Hindu villagers of the two villages had the right to take out religious and non religious processions with appropriate music along the District Board and village roads and other public highways of the locality including those by the side of the defendants ' mosques without any interruption wherever the plaintiffs ' community chose to take out without restriction and that the defendants, viz., the Mohamedan villagers of villages Alkund and Nuagaon, be permanently restrained from interfering with the plaintiffs ' lawful procession as aforesaid in any manner. The case of the plaintiffs, in brief, was that the villages Nuagaon and Alkund were contiguous villages and they had a common social, cultural and religious life, and they were entitled to take out religious and non religious processions with appropriate music. It was alleged that the Muslim villagers of the locality had two mosques, one in each village, abutting the highway. It was further alleged that till the Kartick Purnima day of 1952 the plaintiffs had taken out their religious and social processions with ' appropriate music without any interruption before the mosques in question; that the plaintiffs were prevented from exercising their lawful rights by orders of the Magistracy at the instance of the defendants; that the defendants held out threats to attack the plaintiffs ' peaceful processions and accordingly it was necessary to clear the cloud created by the Magistracy and the conduct of the defendants. We may mention that the District Magistrate and the State Government were not made parties to this suit. ' The defendants ' main plea was that the right claimed by the plaintiffs could only be exercised as not to cause any interference with the exercise of the rights of the defendants. It was alleged that the Muslim community of the two mauzas also had inherent, natural and fundamental rights to offer their prayers in complete calmness without any interference whatsoever and they were entitled to oppose music being played near about the mosque in 565 order to maintain the calmness inasmuch as the music or Sankirtan really disturbed the calmness which was absolutely necessary for concentration of mind in prayer. The defendants also. relied on a compromise alleged to have been arrived at between the two communities in 1931. It was alleged that in pursuance of the compromise two pillars had been put up by the defendants on both sides of the mosques to indicate to the music players of the processionists where to stop the music, and the pillars bore the following engraved inscriptions: "Baja bajaiba nishdha" The following issues, among others, were framed by the Trial Judge: (5) Is the right of the plaintiff villagers to take religious and non religious processions with appropriate music by the side of the mosques of Nuagaon and Alkund likely to infringe the rights of the defendant moslem villagers to offer their prayer in calmness ? (6) Are the plaintiffs entitled to. enforce their fight in wanton disregard of the fundamental rights of the defendants ? (7) Are the plaintiff villagers estopped to re agitate their lost fundamental right to play music in front of the mosques ? (8) Are the plaintiffs bound by the compromise entered into between the properly represented leaders of both the communities. dated 2 3 31 and had the compromise been acted upon ? The Trial Court held that the rights of the plaintiffs to take out the processions with the accompaniment of music was not absolute and the plaintiffs could only exercise the same on all occasions except near the mosques at the time of congregational prayer of the defendant community according to Islamic religion and subject to other lawful orders or directions given by the Magistrate or Police for preventing breach of peace or regulating traffic. The Court further held that a compromise was effected in 1931 and the Hindu community had been acting according to the terms of the compromise so as not to disturb the religious sentiments of the Muslim community by playing music before their mosques while going in processions. The Court accordingly held that the plaintiffs were estopped from re agitating the matter which they had agreed not to do. The Court accordingly decreed the suit and gave the following declaration: "That the plaintiffs have a right to take out both religious and non religious processions with the 566 accompaniment of proper music for the occasion on the highways of Alkund and Nuagaon villages subject to the undermentioned restrictions (a) that they do not play music between the space of brick pillars situated on both sides of Alkund mosque and between the space indicated by two stones on either side of the Nuagaon mosques so as not to disturb the defendants or their community in their offering their prayers and (2) that the right also subject to any lawful order or direction by the Magistrate or the Police for preventing breaches of public peace or obstructing the highway and such other orders under any other statutory provisions for regulating traffic. The parties will bear their own costs. " On appeal by the plaintiffs, the First Additional Sub Judge also held that the compromise was binding on the plaintiffs. He further held that it was manifest from the inscription on the two pillars (Baja bajaiba nishdha) that the leaders of the Hindu community agreed to stop only drum beating near the said two mosques. In view of this conclusion he gave the following modified declaration: "That the plaintiffs both in their individual capacities and as members of the Hindu Community have a fight to take out religious and social processions accompanied by music in a low sound except drum beating along public roads while passing the two brick pillars situated on either side of Alkund mosque and the two stones fixed on either side of Nuagaon Mosque, subject to any orders or directions issued by the magistrate or police for preventing breaches of public peace or obstructions of the thoroughfares or for other matters mentioned in section 144 Criminal P.C. or under other statutory provisions or for regulation of traffic, provided that the exercise of such right does not amount to a nuisance recognised by law. " The defendants appealed to the High Court and the plaintiffs filed a cross appeal. R.K. Das, J., held that no restriction order of the lower appellate court directing the plaintiffs to take out processions with appropriate music and that the restrictive could be imposed on the right of the plaintiffs ' community to take out procession with "low sound music except drum beating" was not justified and was liable to be set aside. He, however, maintained the rest of the declaration given by the First Additional Sub Judge. The High Court further held that the compromise did not create an estoppel against the plaintiffs. He observed that "there is nothing on record to show that the signatories to the said compromise had any authority whatsoever to bind the com 567 munity as a whole. It is well settled that a few self constituted leaders or even leaders chosen by the officials do not legally represent the entire community which includes minors also and without proof of valid authority such leaders cannot bind the other members of the community. The question whether any valid authority was given or not is a question of fact in each case." The learned counsel for the defendants contends that (1 ) the High Court had no jurisdiction to set aside the finding that the compromise was effected in a representative capacity; (2) that Babu Ram Singh vs Subhan Mochi(1) lays down good law and should have been followed by the High Court; and (3) that both the Hindus and the Muslims have fundamental rights and in case of conflict reasonable restrictions on playing of music before the mosques should be imposed by this Court. In our opinion the High Court was right in coming to the conclusion that the compromise was not binding on the Hindu community. The learned Additional Sub Judge had misdirected himself in law in coming to the contrary conclusion. The compromise was not arrived at in a suit fought in a representative capacity but was filed in a proceeding under section 107, Criminal Procedure Code. The signatories declared inter alia that "neither we, the Musalmans nor we the Hindus can at any time in future create any disturbance towards. each other 's religion and will deal with each other amongst ourselves . There is no apprehension of breach of peace as we the Hindus and the Musalmans have amicably settled the matter nor will there occur any breach of peace in future. So we both parties having settled the matter amicably hereby submit this petition and pray that the case be disposed of in terms of this compromise petition. " It is signed by a number of persons but there is no indication that they represented the two communities. It may be that these persons, who signed the compromise, were important persons in the communities and it may be that both the communities should act according to the compromise effected by the so called important persons. But in law it does not debar the parties from asserting their legal rights in a civil court. We need not decide what the compromise means, and particularly whether the words inscribed on the pillars were part of the compromise effected by the leaders. The facts in Babu Ram Singh vs Subhan Mochi(1), which was. relied on by the learned counsel for the defendants, were different. There the Court was satisfied from a consideration of the circumstances that the agreement was binding on the parties. The Court observed: (1) A.I.R. 1932 All. 568 "It is manifest that the parties did summon the leaders of the various communities and that they were summoned as representatives of their various communities . We find it quite impossible to believe in the circumstances of the case that the other Mahomedans of Rasra were not fully aware of the meeting to which their leaders had been summoned, and their subsequent conduct in the ensuing years shows that during those years, at any rate, they accepted the representative capacity of the leaders who had signed the agreement. It is manifest that for at least three years no single Mahomedan made any endeavor to repudiate the authority of those leaders . That it is right and proper to infer the representative character of the signatories to the agreement from the surrounding circumstances is amply supported by a reference to section 187, Contract Act. " We are not called upon to decide whether that case was rightly decided or not as the facts in that case were quite different. As we have said, this was a proceeding under section 107 against particular parties and we are unable to appreciate how any party in a proceeding under section 107, Criminal Procedure Code, could represent the whole community to which he belongs. The law on the subject of rights of persons to take out religious processions was settled by the Privy Council in Manzur Hasan vs Muhammad Zaman(1). The learned counsel has not challenged that decision, but appeals to us to. incorporate more reasonable restrictions so as to fully preserve the rights of the appellants defendants to say their prayers in peace in the mosques. In our opinion there is no reason why we should not follow the decision of the Privy Council in Manzur Hasan vs Muhammad Zaman (1), and the form of declaration given therein. The declaration given by the Privy Council paid due regard to the rights of both communities. We accordingly substitute the following declaration: "That the plaintiffs have a right to take out both religious and non religious processions with the accompaniment of music on the highways of Alkund and Nuagaon villages (1) subject to the order of the local authorities regulating the traffic and (2) subject to. the Magistrate 's directions under any law for the time being in force and the rights of the public. " The appeal accordingly fails and is dismissed. There will be no order as to costs. V.P.S. Appeal dismissed. (1) [1924] 52 I.A. 61.

For the first year of production by a unit of the appellant Corporation (a Central Government Undertaking), it granted ad hoc bonus for good performance to the unit 's employees. For the next year, the appellant granted bonus as recommended by the Bonus. Commission and also made ex gratia payment for good performance. The appellant decided to pay bonus for the third year, strictly in accordance with the Payment of Bonus Ordinance and the Act, which had come into force then. The Central Minister announced in the Lok Sabha that with the specific approval of the Central Cabinet ex gratia payments had been allowed in the past by way of bonus to the employees and this was communicated by the Government of India by a letter. In the fourth year the production did not exceed the target, and the appellant offered to pay only the statutory bonus under the Bonus Ordinance and Act 'and stated that a production scheme had been introduced, that with the introduction of the production bonus scheme all ex gratia payments were eliminated and that this scheme was approved by the Government of India. The workmen demanded that the bonus should be paid for the third and fourth years at the same rate as it had been paid in previous years and the appellant was bound to act according to the decision of the Central Cabinet and communicated by the letter. The workmen also stated that if their demands were not met within 15 days, they would be forced to adopt agitation approaches. Conciliation proceedings started. The appellant offered the workmen the option of either accepting the Cabinet decision or the production Bonus Scheme as formulated by the management. The workmen desired that the Cabinet 's directions be made applicable to them, declined the offer to opt for the production bonus, and prepared a draft of a letter which was intended to be sent by the workmen to the appellant stating that the offer was also made. The workmen went on strike and the reference to adjudication was made. The Tribunal accepted the claim of the workmen, and held that the strike was justified. HELD: (i) The appellant failed to establish that production bonus scheme was introduced with the consent and approval of the Central Government and that on its introduction the ex gratia payment of bonus stood eliminated. The evidence established that the Cabinet 's decision was made known to the workmen, who were given the option either to accept the Cabinet decision or the production bonus scheme as formulated by the 'appellant. So long as the Cabinet decision had been communicated and option was given to the workmen, it did not matter at what stage the communication was made to the labour. The fact that the communication of the 707 Cabinet decision after the submission of the charter of demands was of no consequence. The striking down of section 34(2) of the Bonus Act by this Court has no bearing in considering the claim of the. respondent in this case. When once it was established, as this case, that the Cabinet decision regarding ex gratia payment of bonus had been communicated to the workmen with an option to accept the said decision or the production bonus scheme and the labour wanted the Cabinet decision to be implemented, it followed that an agreement, under section 34(3) of the said ' Act had come into effect and it was valid. [720] Therefore, the workmen were entitled to ex gratia payment of bonus as in the previous years. (ii) The management was prepared to pay at all times the bonus as per the Bonus Act. They had also announced the introduction of the production bonus scheme. They were actively taking part in the conciliation proceedings. The appellant also made to the Union certain proposals at the conference which 'proposals ' the representatives of the workmen promised to discuss with the workmen and give a reply to the appellant. But, at a meeting of the workmen next day, they were incited to go on strike. The receipt of the telegram sent by the Labour Commissioner fixing a date for further discussions and inviting the Union and the management to attend the meeting, was falsely denied by the Union. The receipt of a telegram from a person representing the workmen at conciliation meeting, requesting the Union to put off going on strike by one day was admitted by the President of the Union, but that request was not complied with by the workmen. All these circumstances clearly established that the demand of the Union regarding ex gratia bonus could not be considered to be of an 'urgent 'and serious nature '. They also showed that the launching of the strike was unjustified. [725 H] Therefore, the workmen were not entitled to any wages for the period of strike.

ivil Appeal Nos. 3392 3394 of 1990. From the Judgment and Order dated 30.11. 1989 of the Andhra Pradesh High Court in W.A. No. 269/89, dated 30.8.1988 in W.P. No. 12041/84 and dated 26.11.1987 in W.P. No. 194 of 1983. P.K. Goswamy, Additional Solicitor General, M.K. Ramamurthy, C. Sitaramaiya, M.L. Paul, Kailash Vasdev, Ms. M.M. Rasaily, M.A. Krishnamurthy, Mrs. C. Ramamurthy, T.V.S.N. Chari, Mrs. B. Sunita Rao and Ms. Majula Gupta for the Appearing Parties. The Judgment of the Court was delivered by KASLIWAL, J. Special leave granted. All the above cases are disposed of by one single order as identical questions of law are involved in all these cases. In order to appreciate the controversy, facts in brief are stated of all these cases. SLP No. 4176 of 1988: The respondent Vijaya Kumar was appointed as a Proba tionary Officer (Gr. I Officer) by an Order of the Executive Committee of the Central Board of the State Bank of India on 7.12.71. The respondent was charge sheeted in respect of gross irregularities and corrupt ?401 practices and was ultimately dismissed from service by an order dated 22.12.88 passed by the Chief General Manager of the Bank. Shri Vijay Kumar filed a writ petition No. 194/83 before the Andhra Pradesh High Court challenging his order of dismissal. A Division Bench of the High Court heard the writ petition alongwith writ appeal No. 141/86 and allowed the writ petition but dismissed the writ appeal by order dated 26.11.87. The State Bank aggrieved against the afore said order of the High Court passed in writ petition No. 194/83 has filed this special leave petition. The High Court has allowed the writ petition only on one ground that the appointing authority of Vijaya Kumar was Executive Committee of the Bank and as such Chief General Manager being an authority lower than the appointing authority was not compe tent to pass an order of dismissal. SLP No. 15235 of 1988: In this case the respondent T. Dayakar Rao was appointed as a Clerk in the State Bank of India in the month of Octo ber, 1962. In the month of July, 1971 he was selected as a Trainee Officer and was given job training at various branches of the Bank for two years. While he was working as a Bank Manager he was chargesheeted for irregularities committed by him during the period 1.9.79 to 15.6.80. Disci plinary proceedings were initiated on 29.7.82. On 6.3.84 the Chief General Manager in the capacity of disciplinary au thority passed an order of dismissal. T. Dayakar Rao filed a writ petition No. 1204/84 in the High Court. The Division Bench of the High Court by an order dated 13th August, 1988 allowed the writ petition following the decision of Division Bench given in writ appeal No. 141/86 dated 26.11.87. The Bank aggrieved against the aforesaid order has filed the Special Leave Petition under Article 136 of the Constitu tion. SLP No. 2069 of 1990: In this case Shri A.K. Soundararajan appellant was appointed as Technical Officer by an order dated 14.6.68 of the Executive Committee of the Central Board of the Bank. It was mentioned in the Order that Shri Soundararajan would be governed by the State Bank of India (Officers & Assistants) Service Rules. Post of Technical Officer was considered equivalent to Staff Officer Grade III under the Rules. He was suspended and given a chargesheet on 23.4.82 and was dismissed by an order dated 31.3.83 passed by the Chief General Manager. Shri Soundararajan filed a writ petition No. 7108/85 in the High Court challenging his order of dismissal. Learned Single Judge of the High 402 Court by order dated 31.10.88 allowed the writ petition by following the decision given by the Division Bench in writ petition No. 1204/84 in the case of T. Dayakar Rao. The State Bank aggrieved against the order of the learned Single Judge filed an appeal before the Division Bench. The Divi sion Bench in this case took into consideration an amendment made in Regulation 55 by a resolution dated 25.8.88 made applicable with retrospective effect. The Division Bench by Order dated 30th November, 1989 allowed the appeal filed by the Bank. Shri A.K. Soundararajan aggrieved against the Order of the High Court has filed this Special Leave Peti tion. It would be necessary to narrate the facts of SLP (C) No. 5139/88 (State Bank of India vs Hanumantha Rao) disposed of by an order of this Court dated 30th January, 1990. Hanumantha Rao was promoted as Grade I Officer on 1.4.1973 by the Executive Committee of the Central Board of State Bank of India. In 1979 he was posted as the Manager of a branch of the Bank in Warangal District. In respect of certain alleged acts of misfeasance/malfeasance he was suspended on 17.8.81. On 4.5.82 a memo of charges was served on Hanumantha Rao by the Chief General Manager of the Bank. The Chief General Manager of the State Bank of India, local head office Hyderabad dismissed Hanumantha Rao by an order dated 7.1.84. Hanumantha Rao filed a writ petition No. 5509/84 in the High Court. Learned Single Judge allowed the writ petition declaring the order of dismissal as incompe tent and invalid. The Bank aggrieved against the order of the Learned Single Judge filed a Letters Patent Appeal No. 141/86 before the Division Bench. The Division Bench heard and disposed of the writ appeal No. 141/86 and writ petition No. 194/83 by a common order. The Division Bench agreed with the conclusion of the learned Single Judge that the order of dismissal passed by the Chief General Manager is incompetent and invalid being violative of the guarantee contained in the proviso to Regulation 55(2)(a) of the State Bank of India General Regulations, 1955. While dealing with the cross objections filed by Shri Hanumantha Rao the Bench took notice of the fact that the writ petitioner had died on 24.11.87 and as such gave the following direction: "On account of the death of the writ petitioner it is unnec essary for us to go into the merits of the contentions urged by way of cross objections. There is no question of 403 any enquiry or further enquiry hereafter. We may mention in this connection that the learned counsel for the petitioner (respondent in this Writ Appeal) offered to file a petition to bring on record the legal representatives of the deceased writ petitioner as respondents in this Writ Appeal since, according to him, they would be entitled in any event to claim the monetary benefits flowing from the orders of this Court. Now that we have agreed with the learned single Judge that the order of dismissal was incompetent and invalid, we direct that the writ petitioner shall be treated to be under suspension pending enquiry till 24.11. 1987 and all the monetary benefits that he is entitled to on that basis, including the arrears of suspension allowance, shall be paid over to his legal representatives. Mr. Prasad will file the legal representatives petition within two weeks from today. Post this Writ Appeal for orders after two weeks. The Writ Appeal, accordingly, fails and is dis missed, but, in the circumstances, without costs. " The Bank aggrieved against the aforesaid order filed the SLP No. 5139/88 before this Court. Taking note of the facts and circumstances of the case of Hanumantha Rao having died on 24.11.87 leaving behind 14 children, this Court on 30th January, 1990 did not consider if fit to interfere with impugned order of the Division Bench. It was further made clear that even though this Court was not interfering with the impugned order, the questions raised on behalf of the Bank were left open. The Bank was directed to treat Hanuman tha Rao in service and pay the dues, arrears of salary and other terminal benefits in accordance with law to his legal representatives. With these observations, the SLP was dis missed. The question which calls for consideration in all these cases is whether the order of dismissal could be passed by the Chief General Manager who was lower in rank to the Executive Committee who was the appointing authority in these cases. In order to appreciate this controversy, it would be proper to give reference of the relevant provisions of the (hereinafter referred to as the Act), State Bank of India General Regulations, 1955 (hereinafter referred to as the Regulations) and the State Bank of India (Supervising Staff) Service Rules, 1975 404 (hereinafter referred to as the Rules). Section 43 of the Act empowers the State Bank to appoint such number of officers, Advisors and Employees as it con siders necessary or desirable for the efficient performance of its functions and to determine the terms and conditions of their appointments and service. Section 49 of the Act confers power on the Central Government,in consultation with the Reserve Bank to make rules to provide for all matters in which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act. Section 50(1) of the Act confers powers on the Central Board of Directors of the Bank to make regulations. Sub section (3) of the Section 50 of the Act empowered the Reserve Bank to make the first regulations with the previous sanction of the Central Government. In exercise of the powers conferred by sub section (3) of Section 50 of the Act, the Reserve Bank of India with the previous sanction of the Central Government made the State Bank of India General Regulations, 1955. These regulations have been amended from time to time by the Central Board of Directors by making regulations under subsection (1) of Section 50 of the Act. Regulation 55(2)(a) deals with the initial appointments and promotions to various categories of employees in the bank. Initially the appointments of Officers used to be made only by the Executive Committee as provided in Regulation 55(2)(a). As the bank grew larger in branches, the bank thought fit to vest the power of appointment and promotion to various functionaries of the bank and also gave power to delegate their power of appointment also. Regulation 55(2)(a) was thus substituted by a resolution dated 18th August, 1971 of the Central Board. After this resolution for Officers Grade I & II,the appointing authorities were speci fied as the Secretary and Treasurer or the Managing Director respectively depending upon whether the appointment/promo tion is for service in the Circle or the Central office. The State Bank of India Officers & Assistants Rules which govern the service conditions of Grade I Officer whether they were Probationary Officers or Trainee Officers and Staff Officers followed the scheme of "appointing authority" laid down in the Regulations. Regulation 55(2)(a) was again amended by a resolution of the Central 405 Board on 11th July, 1972. By this amendment there was only a terminological regrouping of the earlier regulation rather than any qualitative change. The State Bank Laws (Amendment) Act, 1973 introduced various amendments and one of the amendments was relating to change of designation of Secre tary and Treasurer as Chief General Manager. Hence the Central Board vide its resolution dated 29.3.74 for the words "Secretary & Treasurer" substituted "Chief General Manager. " The service conditions of all Officers came to be brought under a single set of service rules viz. the State Bank of India (Supervising Staff) Service Rules which came into force on 1.7.75. It would be important to mention that Regulation 55(2)(a) at all relevant period for our purpose recognized the right of the officers or employees of the Bank under the following clause "such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority. " Clause (f) of Rule 3 of the State Bank of India (Supervising Staff) Service Rules which is relevant for our purposes reads as under: (f) "Appointing Authority" means (i) in the case of Officers Grade II and Grade I and of other employees to whom the salary scales applicable to Officers Grade II and Grade I generally apply with or with out modification, the Chief General Manager concerned or the Managing Director according as the employee is serving in the Circle or in or under Central Office; (ii) in the case of Staff Officers of various grades and of other employees to whom the salary scales applicable to Staff Officers generally apply with or without modification, the Managing Director; (iii) in the case of Senior Staff Appointments and of em ployees to whom the salary, scales applicable to Senior Staff Appointments generally apply with or without modifica tion, the Executive Committee; Sub Rule (1) of Rule 50 relevant for our purposes is also reproduced below: 50(1)(i) The Disciplinary Authority may itself, or shall when so directed by its superior authority, institute disci plinary proceedings against an employee. 406 (ii) The Disciplinary Authority or any Authority higher than it may impose any of the penalties in rule 49 on an employ ee. It may be further noted that an amendment in Regulation 55 was approved by Central Board at its meeting dated August 25, 1988 which reads as under: 55(1) Save as provided in sub regulation (2) and as may be directed the Central Board, a Local Board may exercise all the powers of the State Bank in respect of the Staff serving in the areas in its jurisdiction. 2(a) The appointing and/or promoting authority for various categories/grades of officers and employees shall be such as the Executive Committee may by general or special order designate from time to time. (b) No officer or employee of the Bank shall be dismissed, discharged, removed or retired from the service of the Bank or reduced to a lower grade or post or to a lower stage in a time scale by an authority lower than the appointing author ity. Explanation (For the purpose of clause (b) the term 'appointing authority ' shall mean and include the authority who has been designated as such in respect of such class or grade of officers or employees to which the officer or employee concerned, as the case may be belongs at the time when such Order is passed or any proceeding leading to such Order or termination is initiated. ) (c) Nothing in this sub regulation shall affect the powers of a disciplinary authority appointed or notified under any award, settlement under the , governing, affecting or regulating the service conditions of workmen of the Bank, and for the purpose of clause (b) above, the appointing authority shall be deemed to have been substituted by such disciplinary authority. (d) The salary and other emoluments to be granted to offi cers and other employees shall be as laid down in the Rules of Service approved by the Central Board and, where no such rules have been laid down, as fixed by the Executive Commit tee. 407 (e) The power to grant pensions to officers and other em ployees leaving the service of the State Bank, other than pensions provided for under the Rules of pension funds respectively applicable to them, shall be reserved to the Central Board. (f) The grant of gratuities or other financial assistance, either temporary or permanent, to widows, children or other dependents of deceased officers or other employees shall be made by the Executive Committee of the Central Board except where grant of any such gratuity or financial assistance is authorised by any general direction given by the Central Board. Explanation (The term 'Officers ' in this regulation shall include any employee to whom the rules of service generally applicable to officers, apply with or without modification.) (Sub regulation (2) substituted with effect from 1.10.79). " The Executive Committee of the Bank passed the following resolution on August 30, 1988: In exercise of the powers conferred by sub section (1) of Section 43 of the (23 of 1955) and amended sub regulation (2)(a) of Regulation 55 of the State Bank of India General Regulations, 1955, the Executive Committee of the Central Board of the State Bank of India hereby makes the following order: The initial appointments and/or promotions to various categories of officers and other employees in the Bank set out in Column I here under shall be made by the authority specified in Column II. Column I Column II Employees working at branches i) Employees other a) Subordinate the concerned than officers Staff Branch Manager and deputy General Manager ii) Clerical the concerned Staff Regional Manager and Dy. General Manager. b) Employees working at LHOs/ 408 Regional Offices and their establishments The concerned Office Manager/ Admn. Officer at Staff Colleges or Insti tutes Manager Dy. Chief Manager or, where there is no post of above descrip tions the head of con cerned dept/office. ii) Officers in The Chief General Manager junior management for appointments/promotions in the Grade Scale I Circle and the Chief General and Middle Manager (Personnel & HRD) in Management Central Office for Central Grade Scale II Office establishment. iii) Officers in The Deputy Managing Director Middle Management Grade Scale III iv) Officers in The Managing Director Senior Management Grade Scale IV, V v) Officers in Top Recommending Authority: Executive Grade Scale VI, VII The Directors Promotion Committee and special consisting of the Chairman, the scales Managing Director and the Director nominated by the Central Government in terms of clause (e), sub section (1) of Section 19 and the Director nominated by the Reserve Bank of India in terms of clause (f) of sub section (1) of Section 19 of the Act. Promoting/Appointing Authority: The Executive Committee of the Cen tral Board. 409 All authorisations in respect of appointing authority and/or promoting authority made by the Executive Committee from time to time after 1.10.79 shall be deemed to have been done under the amended regulation 55. Appointments autho rised by the Chief General Manager (Personnel & HRD) in respect of JMGS I after 1.10.79 are also confirmed hereby. All the employees of the bank in the cases before us where appointed by the Executive Committee. Order of dis missal in their cases has been passed by the Chief General Manager. It is an admitted position that on the date of passing the order of dismissal the Chief General Manager was the appointing authority. According to the Bank though the employees were appointed by the Executive Committee, but at the time when inquiry was held and the order of dismissal passed, the Chief General Manager had become the appointing authority. On the other hand the contention on behalf of the employees is that the Executive Committee being the appoint ing authority, no authority lower than the Executive Commit tee can pass the order of dismissal in their cases. Accord ing to their contention the Chief General Manager, being a lower authority than the Executive Committee, he had no competence to pass the order of dismissal. Learned counsel for the employees in this regard referred to Article 311 of the Constitution of India and placed reliance on a plethora of cases decided on the basis of guarantee enshrined under Article 311 of the Constitution. The guarantee clause under Article 311(1) of the Consti tution of India which is relevant for our purpose reads as under: "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 or removed by an authority subordinate to that by which he was appointed. " Now so far as the right which has been conferred on the employees of the State Bank contained in Regulation 55(2)(a) is that such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority. Thus a comparison of the provi sions contained in Article 311(1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 55(2)(a) shows that there is a material difference between the language used in the two provisions. Under Arti 410 cle 311(1) the words used are "by which he was appointed." In Regulation 55(2)(a) there are no such words "by which he was appointed" and in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the appointing authority. Thus the right guaran teed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an au thority lower than the appointing authority. A perusal of the relevant Regulations and Rules mentioned above clearly go to show that the Chief General Manager had become the appointing authority of the employees in question under Regulation 55(2)(a) with effect from 1.7.74. Admittedly the orders of dismissal have been passed long after these amend ments when the Chief General Manager had already become their appointing authority under the Regulations and the Rules. The right that an officer or employee of the State Bank of India cannot be dismissed from service by an author ity lower than the appointing authority is a creation of statutory rules and regulations. So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of a State or who holds a Civil Post under the Union or a State. Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protec tion under Article 311(1) of the Constitution. The employees of the State Bank can only claim such rights which have been conferred under Regulation 55(2)(a) of the General Regula tions. The only right conferred under the said provision is that the officers or employees of the State Bank cannot be dismissed by an authority lower than the appointing authori ty. With the risk of repetition it may be stated that on the date when the order of dismissal has been passed, Chief General Manager had already become the appointing authority and as such the order of dismissal has not been passed by an authority lower than the appointing authority. Apart from the view taken by us as mentioned above the Regulation 55 has been amended by a resolution of the Cen tral Board dated August 25, 1988 with retrospective effect. It has now been made clear in the explanation that for the purpose of clause (b) the term appointing authority shall mean and include the authority who has been designated as such in respect of such class or grade of officers or em ployees to which the officer or employee concerned, as the case may be belongs at the time when such order is passed or any proceedings leading to such order or termination is initiated. This provision now concludes the controversy if any and clearly provides that the appointing authority shall mean and include the authority who has 411 been designated as such at the time when such order is passed. It was contended on behalf of the Learned counsel for the employees that the Bank had no power to amend the Regulations with retrospective effect. We see no force in this contention. Section 50(2)(a) of the Act clearly pro vides that all regulations made under this section shall have effect from such earlier or later date as may be speci fied in the regulation. Thus the regulations can be made to give effect from earlier dates also as may be specified in the regulations. We find no force in the contention of learned counsel for the employees that they had vested right in this regard and the same could not have been taken away by making regulations with retrospective effect. There cannot be any vested right in such a matter. As already mentioned above it was a right conferred under Regulation 55(2)(a) and the same can be amended with retrospective effect also in case the authority competent to make regula tions has been given a right to make regulations with retro spective effect. It has been held in State of Jammu & Kash mir vs Triloki Nath Khosa & Ors., S.C.R. 1974 Vol. 1771 that it is well settled that a Government servant acquires a 'status ' on appointment to his office and as a result his rights and obligations are liable to be determined under statutory or constitutional authority which for its exercise requires no reciprocal consent. In Bishun Narain Misra vs The State of Uttar Pradesh and Others, AIR 1965 Vol. 52 SC 1567 it was held that new rule reducing the age of retire ment from 55 years to 53 years could not be said to be retrospective. The proviso to the new rule and the second notification were only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule therefore, could not be struck down on the ground that it was retrospective in operation. In Roshan Lal Tandon vs Union of India & Anr., and Kunj Behari vs Union of India & Ors., AIR 1967 SC Vol. 541889 it was held that the legal position of Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement by the parties. Emolu ment of the Government servant and his terms of service are governed by statute or statutory rules which may be unilat erally altered by he Government without the consent of the employee. It was further held in the above case that the petitioner had no vested contractual right in regard to the terms of his service and that the same can be altered uni laterally. We may further add that the prohibition if any to alter the terms and conditions can be found only under the Constitution of India and in case power of the rule or law making authority is not circumscribed or limited by any constitutional 412 mandate then it has power to amend such terms and conditions of service unilaterally without the consent of the employee. In the cases in hand before us the right whatsoever con ferred on the employees of the State Bank was on the basis of Regulation 55(2)(a) and the Central Board of the Bank was authorised to amend such regulations from any date under Section 50(2)(a) of the Act. In the result the appeals filed by the State Bank of India in the case of Vijaya Kumar and T. Dayakar Rao are allowed, the impugned orders passed by the High Court are set aside and the cases are remanded to the High Court for deciding the writ petitions on other points in accordance with law. Now so far as the appeal filed by Sh. A.K. Sunda rarajan is concerned, the point decided by us shall remain concluded but the appellant would be free to raise other points before this Court which are left undetermined. This case may now be listed for further hearing and final dispos al at an early date. In the facts and circumstances of the case, the parties shall bear their own costs. Y. Lal C.A. No. 3392 & 3393 of 1990 allowed. C.A. No. 3394 of 1990 ordered to be listed for final heating.

The appellant owned land hearing R.S. Nos. 44/11 and 44/20 in village Thottapuzhasseri in Kerala State. Respond ent 3, M.M.A. High School moved an application under Sub clauses (a) and (b) of Clause (i) of Section 1 of Chapter 6 of the Land Acquisition Manual before the State 's Education Department praying that the aforesaid land be requisitioned for a public purpose for construction of a playground for the school. The State authorities after complying with the requirements of the Kerala Land Acquisition Act, 1961, issued a declaration under Section 6 of the Act stating the lands described therein were needed for a public purpose viz. construction of a playground for the school. The appel lant challenged the validity of the declaration by filing a writ petition before the High Court, contending, that (i) the proposal to acquire the property was mala fide; (ii) that the declaration was bad as no notice was issued to the Education Department as required by Rule 5(b) and (c) of the Kerala Land Acquisition Rules and (iii) that the appellant needed the property for construction of houses for his sons. The High Court dismissed the writ petition holding that there was no violation of the provisions of Rule 5(b) and (c) of the Rules nor was there any infringement of Rule 6. Hence this appeal by the appellant by certificate. Dismissing the appeal, this Court, HELD: The requisition in the instant case, was not made at the instance of the Government Department but at the instance of the Manager, private school and the Education Department merely has given a note certifying that the purpose of the requisition is a public purpose and that the school agreed to bear the entire costs. [544C D] It cannot therefore be contended that the requisition has been made by the Education Department or by its officer for acquisition of the land in question. [541C] 536 The High Court has rightly held that there has been no violation of Rule 5(b) and (c) or 6 of the Rules. [541F] That it is inappropriate to issue notice to the Education Officer or Departmental Officer who certified about the public purpose as well as readiness of the school authority to pay the entire money for acquisition and failure to issue such a notice to the Departmental Officer would not amount to violation of the principles of natural justice and in fringement of the said Rule 5(b) and (c) of the said Rules. [541 F G] Lonappan vs Sub Collector, Palghat, AIR 1959 Kerala 343; State of Madras and Ors. vs Periakkal and Ors., AIR 1974 Madras 383 and State of Mysore and Ors. vs V.K. Kangan and Ors., ; at 371, referred to.

ivil Appeal No. 3544 of 1989. From the Judgment and Order No. 131/89 D dated 9.5. 1989 of the Central Excises & Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/1176/88 D. Rajiv Dutta, Nimish Kothare and K.K. Patel for the Appel lant. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal under section 35L of the Central Excise & Salt Act, 1944 (hereinafter referred to as 'the Act '). The appellant is a manufacturer of various types of food products known as Sapaghetti, Macaroni, Vermicelli, etc., falling under Heading No. 1902.10 of the Central Excise Tariff Act. The appellant filed classification list effec tive from 1st March, 1987 claiming that their pre budget stocks of non excisable goods, namely, various types of food products declared in the classification list as aforesaid were entitled to duty free clearance being pre budget stocks. The Assistant Collector of Central Excise, however, held that the question of clearing pre budget stocks duty free did not arise because the products in question were excisable though exempted from the duty. There was an appeal from the said order of the Assistant Collector before the Collector of Central Excise (Appeals), Bombay. He dismissed the appeal. The appellant went up in appeal before the Tribunal. It was contended before the Tribunal on behalf of the appellant that the goods in question were not leviable to duty under the aforesaid head until 28th February, 1987 and the said goods had been made dutiable only by the 313 Finance Bill, 1987 88 with effect from 1st March, 1987. It was submitted further that on 27th February, 1987, the appellant had in their factory a stock of the said product which were fully manufactured, packed and ready for sale and the inventory of the said stock was prepared by the Supdt. of Central Excise on 1st March, 1987. Reliance was placed on several decisions of the different High Courts, namely, decision of the Madhya Pradesh High Court in Kirloskar Brothers Ltd. vs Union of India, ; Union of India vs Kirloskar Brothers Ltd., , decision of the Bombay High Court in Synthetic Chemicals Pvt. Ltd. vs S.C. Coutinho, , decision of the Bombay High Court in New Chemicals Ltd. vs Union of India, decision of the Madras High Court in Sundaram Textiles Ltd. vs Asstt. Collector of Central Excise, , decision of the Allahabad High Court in Union of India vs Delhi Cloth & General Mills, On the other hand, the revenue contended that the goods forming the pre budget stocks were very much excisable goods and that for the purpose of collecting duty, date of manufacture was not material under the scheme of the Act even though the taxable event is the manufacture. It was, therefore, contended that at the time of manufacture of the goods in question, the goods were excisable goods and in view of rule 9A of the Central Excise Rules, 1944, though the taxable event is the manufacture and production, the payment of duty is related to and postponed to the date of removal of articles from the manufactury. The Tribunal accepted the said contention. We are of the opinion that the Tribunal was right. It is well settled by the scheme of the Act as clarified by sever al decisions that even though the taxable event is the manufacture or production of an excisable article, the duty can be levied and collected at a later stage for administra tive convenience. The Scheme of the said Act read with the relevant rules framed under the Act particularly rule 9A of the said rules, reveals that the taxable event is the fact of manufacture or production of an excisable article, the payment of duty is related to the date of removal of such article from the factory. In that view of the matter, the Tribunal dismissed the appeal and rejected the assessee 's contention. Appearing before us in support of the appeal, Mr. Rajiv Dutta, learned counsel for the appellant contended that in several decisions it has been held, and referred us to the said decisions referred to hereinbefore, that the relevant date would be the date of manufacture and in this case the manufacture was complete before the introduction of the budget. It was submitted that until 28th February, 1987, when, 314 according to Shri Dutta, the goods had been manufactured, the goods in question were unconditionally exempt from the duty. Under the Finance Bill, 1987 88, the said products were made dutiable at the rate of 15% ad valorem on or from 1st March, 1987. But the appellant had in their factory, a stock of the said products which were duly manufactured, according to Shri Dutta, packed and ready for sale prior to 28th February, 1987. In those circumstances, the goods in question, according to Shri Dutta, would not be subjected to duty at 15% ad valorem. Having considered the facts and the circumstances of the case, we are unable to accept this submission. Excise is a duty on manufacture or production. But the realisation of the duty may be postponed for admin istrative convenience to the date of removal of goods from the factory. Rule 9A of the said rules merely does that. That is the scheme of the Act. It does not, in our opinion, make removal be the taxable event. The taxable event is the manufacture. But the liability to pay the duty is postponed till the time of removal under rule 9A of the said Rules. In this connection, reference may be made to the decision of the Karnataka High Court in Karnataka Cement Pipe Factory vs Supdt. of Central Excise, 13, where it was decided that the words 'as being subject to a duty of ex cise ' appearing in section 2(d) of the Act are only descriptive of the goods and not to the actual levy. 'Excisable goods", it was held, do not become non excisable goods merely by the reason of the exemption given under a notification. This view was also taken by the Madras High Court in Tamil Nadu (Madras State) Handlook Weavers Cooperative Society Ltd. vs Assistant Collector of Central Excise, [1978] ELT J 57. On the basis of rule 9A of the said rules, the central excise authorities were within the competence to apply the rate prevailing on the date of removal. We are of the opinion that even though the taxable event is the manufacture or the production of an excisable article, the duty can be levied and collected at a later date for administrative conven ience. Having regard to the facts and the circumstances of this case and having regard to the scheme of the excise law, we are of the opinion that the Tribunal was right and there are no grounds to assail the order of the Tribunal. In the aforesaid view of the matter, the appeal must fail and, accordingly, is dismissed. there will, however, be no order as to costs. R.S.S. Appeal dis missed.

The respondent, a retired Naval Officer, was apprehended at the Bombay International Airport when he was about to take a flight to New York. On search of his luggage certain highly sensitive documents were found, and he was arrested for breach of the provisions of the Official Secrets Act, 1923 and the . The respondent filed a number of applications for being released on bail inter alia on medical grounds. This batch of applications were rejected by Puranik, J. The attention of Puranik, J. was, however, not drawn to the pendency of one more such application, in which the respondent had prayed for grant of bail to facilitate yogic exercises under expert guidance at his residence. The respondent had sought precisely the same relief in an earlier application which had been rejected by Puranik, J. Two days after the rejec tion of the group of bail applications by Puranik, J., the pending application was disposed of by Suresh J., who di rected that the respondent be enlarged on bail, on certain conditions which amounted to virtual house arrest. Before this Court the appellant State has assailed the propriety of the order granting bail passed by Suresh, J. just two days after Puranik, J. had rejected the batch of bail applications. On the other hand, it was contended on behalf of the respondent that this Court should refrain from exercising jurisdiction under Article 136 to cancel bail granted by the High Court. Allowing the appeal, this Court, HELD: (1) It is true that ordinarily this Court does not interfere with an order granting bail, but in the facts of this case the Court feels that judicial discipline will be sacrificed at the alter of judicial discretion if the Court refused to exercise its jurisdiction under Article 136 of the Constitution. [322C] 316 (2) When the batch of bail applications were put up before Puranik, J., his attention was not drawn to the pendency of one more such application. Even if the said application was filed after the hearing started before Puranik, J., the learned Judge could have been told about its pendency before he rendered his decision. This conduct of the respondent has given rise to the argument that the respondent desired to keep the question regarding his en largement on bail alive, [320B C] (3) What is important to realise is that in the hail application before Suresh, J. the respondent made an identi cal request made earlier in an application placed before Puranik, J. Once that application was rejected there was no question of granting a similar prayer. That is virtually overuling the earlier decision without there being a change in the fact situation, which would mean a substantial change having a direct impact on the earlier decision and not merely cosmetic changes which are of little or no conse quence. [321D E] (4) Judicial discipline, propriety and comity demanded that the impugned order should not have been passed revers ing all earlier orders including the one rendered by Pura nik, J., only a couple of days before, in the absence of any substantial change in the fact situation. [321F] (5) In such a situation the proper course is to direct that the matter be placed before the same learned Judge who disposed of the earlier applications. Such a practice or convention would prevent an impression being created that a litigant is avoiding or selecting a court to secure an order of his liking. Shahzad Hasan Khan vs Ishtiaq Hasan Khan, [1987] 2 SCC 684, referred to.

minal Appeal No. 179 of 1961. Appeal by special leave from the judgment and order dated October 31, 1960, of the Andhra Pradesh High Court in Criminal Appeal No. 161 of 1960. K. R. Chaudhuri, for the appellant. A. section R. Chari, B. R. G. K. Achar, and R. N. Sachthey, for the respondent. March 16, 1964. The following judgments were delivered SARKAR, J. This is an appeal from a sentence of imprisonment for life imposed on the appellant upon his conviction for the offence of the murder of his wife. The appeal was filed with the special leave of this Court granted under article 136 of the Constitution but the appellant died pending the appeal. His legal representatives now seek leave to continue the appeal. There would seem to be authority for the proposition that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death 254 of the accused pending the proceeding: see section 431 of the Code of Criminal Procedure and Pranab Kumar Mitra vs The State of West Bengal(1). It appears that in England appeals from similar sentences are permitted to be continued by the executors of the deceased appellant: see Hodgson vs Lakeman(2). It is true that neither section 431 nor the cases mentioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the Code which is dealt with by section 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra 's case, while as for the English case, it is only of persuasive value. All the same however I think it must now be held that appeals from sentences of fine may be permitted to be continued by the legal representatives of the deceased appellant. First, I find no, provision making such appeals abate. If they can be continued when arising under the Code, there is no reason why they should not be continued when arising under the Constitution. If revision petitions may be allowed to be continued after the death of the accused so should appeals, for between them no distinction in principle is possible for the purpose of continuance. It is true that the Code of Criminal Procedure which creates the revisional powers of a Court provides that such powers may be exercised suo motu but it does not seem to me that Pranab Kumar Mitra 's case(1) was based on this for on that ground all revision cases should have been permitted to be continued and the permission should not have been confined to cases of fine. Indeed in that case this Court proceeded on the basis that there was no statutory provision applying to the case. It observed, "even in the absence of any statutory provisions, we have held. . . that the High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him, because that sentence affects the property of the deceased in the hands of his legal representative". A sentence of fine affects property equally when the case is taken further up in appeal or in revision, If it is just and proper to continue the hearing in one case after the death of the accused, it would be equally so in the other case. The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it. A sentence of fine no doubt affects the property. In the present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become (1) (2) [1943] L.R.K.B. 15. 255 infructuous. There is no one now who can be imprisoned. It is, however, said that though that sentence can no longer be executed, it still affects the property of the deceased and the legal representatives are, therefore, interested in the appeal and should be permitted to continue it. The matter is put in this way. The appellant, who held a high office in the Government of Andhra Pradesh had been suspended during the investigation of the charge against him and he was dismissed from service under certain service rules on his conviction. During this time the appellant had only been given a small allowance. It was said that if the conviction was set aside, the estate would be entitled to receive the full salary from the Government. It seems to me that this contention is not accurate. It may be that if the sentence is set aside that may assist the legal representatives in their effort to obtain the full salary to which the deceased 's estate would have been entitled. But the effect of the sentence imposed in this case being set aside would not directly entitle the legal representatives to the salary. They will have to obtain necessary orders from the Government for the purpose. It has not been shown to us that such order will automatically follow the setting aside of the conviction. Neither has it been shown that the legal representatives cannot move the Government to pass such orders on the ground that the correctness of the conviction could not be tested because of the death of the appellant. For these reasons I am unable to hold that tire justice of the case requires that the legal representatives of the deceased should be permitted to continue the appeal. It would be extending the principle applied to the case of a sentence of fine, if on the basis of it this appeal was allowed to be continued by the legal representatives after the death of the appellant and for such an extension I find no warrant. In my view, for these reasons the legal representatives are not entitled to continue the appeal. That being so and as the sentence was one of imprisonment which would not affect anyone after the death of the accused, it cannot be said that there is anyone interested in the appeal. There is no, question, therefore, in such a case for proceeding further with the appeal. HIDAYATULLAH, J. The appellant was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court of Andhra Pradesh. He was granted special leave to appeal by this Court. During the pendency of this appeal the appellant died on August 30, 1963. After his death his sons and daughters applied to this Court on October 5, 1963 for permission to continue to prosecute the appeal. Their petition is all that we are concerned with at the present moment. The appellant was working as Superintending Engineer (Electricity) in the service of the Government of Andhra Pradesh. The case against him was that on August 10, 1959 he 256 committed the murder of his wife by shooting her in the back with a revolver. He was acquitted by the Sessions Judge of Krishna Division, Masulipatnam but, on appeal by the State Government the order of acquittal was set aside and he was convicted and sentenced as above. In view of the appellant 's death we are of course not interested any further in considering the details of the offence, if any, unless we allow the heirs of the appellant to prosecute the appeal after his death and this is precisely what the present petitioners claim they are entitled to do. It is admitted, however, that no analogous contention was ever raised in this Court, though appeal on the death of a sole appellant were, before this, treated as abated. One would expect that an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punishment of an offender and not with the trial of an abstract issue about the truth or falsity of a prosecution case. The maxim actio perso nalis moritur cum persona is often invoked in this behalf. The Criminal Procedure Code in section 431 also provides that all appeals filed under section 41 I A sub section 2 or section 417 shall finally abate on the death of the accused and every other appeal under Chapter XXXI shall finally abate on the death of the appellant, except an appeal against a sentence of fine. The section cannot cover a, case such as the present because this appeal was not filed under any of the sections mentioned in section 431 or under Chapter XXXI. It is contended that without the aid of a provision like section 431, Criminal Procedure Code, the appeal must be treated as continuing and it is pointed out that for this reason and for the additional reason that the powers of revision can be exercised suo motu this Court allowed legal representatives t` continue to prosecute criminal revisions under section 439 of the Code in Pranab Kumar Mitra vs The State of West Bengal and Another(1) and Pritam Singh vs The State(2). It is urged that on a parity of reasonig this appeal can be continued by the heirs. It is not my purpose to consider, whether in the absence of any direct injury to the living every criminal proceeding must come to an end after the death of the accused whether before his conviction or after. But there must always be some discernible reason for permitting another person to continue an appeal whether civil or criminal after the death of the appellant. An appeal is not a heritable asset and does not revolve as a matter of course upon an executor or heir. Even under the civil law an express provision is required for substitution of another person in the place of the person deceased before the appeal can be continued and this is again subject to whether the cause of action survives or not. The same principle is again to the (1) (2) ; 257 forefront in section 431 when it allows an appeal in respect of fine to be continued but not appeals involving imprisonment. The intention there too appears to be to afford only those persons a right whose interests are directly jeopardized by the judgment. In so far as personal punishment (other than a fine) is concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside becomes infructuous and abates. The only question in this case is whether the principle laid down in the two cases of this Court cited above should govern special appeals or the principle underlying section 431. It may be said at once that the former is not a direct precedent applicable to the present matter because there is no analogy between an appeal by special leave and a revision under the Code. The latter can be suo motu but not the former. The petitioners claim that the father, if he were acquitted, would have been entitled to claim his pay for the period upto his death since on his conviction he was removed from service by the Government and the amount thus involved is Rs. 40,000/ . The petitioners say that if the appeal were now allowed they would be able to ask for this amount and in this way claim an interest in the appeal. This is not a case where the legal representatives after the death of the offender have to meet the liability of a fine or are required to protect the assets which they claim should reach them. This is a case where the petitioners claim to have the judgment of the High Court reexamined so that they may be able to prefer a claim to the salary to which their father would have been entitled if he had been acquitted of the criminal charge. In my judgment. no claim of the petitioners is jeopardized directly by the judgment. Their claim is dependent upon the administrative action of Government which may not proceed upon the result of the criminal prosecution. In other words, the claim on the strength of which the present petitioners seek to join in this appeal is too remote and not directly consequential upon the issue to be tried. The appeal was only concerned with the correctness, or otherwise of the conviction and not with any monetary claims depending upon the result of the appeal. In such a situation the ordinary rule that a criminal proceeding against a person comes to an end on his demise must apply also to special appeals in this Court, such as this, even though the provisions of the Criminal Procedure Code may not be directly applicable. At the hearing counsel cited cases from the English Courts and the Supreme Court of the United States. The English cases referred to are collected in Short & Mellor 's Practice of the Crown Office and Griffith 's Guide to Crown Practice and the cases of the United States are referred to in Annotations. L/P(D)ISCI 9 . 258 in 87 Lawyer 's Edition 1234 and 1 Lawyer 's Edition II Series 1879. The English practice appears to be that there must be a, direct monetary liability attaching to the living by reasons of the impugned judgment before they can be allowed to continue an appeal filed by a dead person. See Hodgson vs Lakeman(1) and Regina vs Rowe(2). The American practice also appears to be the same. There is good reason for holding that a criminal prosecution in which the State is anxious to bring an offender to book with a view to getting him punished for a crime comes to an end on the death of the person arraigned. The same principle must apply also to appeals after conviction, except in so far as a judgment already rendered touches assets which would come to the legal representatives or the executor as the case may be. Beyond this it is not possible to conceive of remoter interests because if the law were to take into account such remote interests every appeal would have to be continued after the death of the appellant. In my judgment, the present petitioners do not claim any direct interest and the appeal must, therefore, be taken to have abated. I agree that the petition be dismissed and the appeal held to have abated. MUDHOLKAR, J. This appeal raises an interesting and important question. It is whether the heirs at law of a deceased person who had brought an appeal to this Court by special leave in which he had challenged his conviction and sentence for an offence, are entitled to prosecute the appeal after his death during the pendency of the appeal. The applicants are the children of the deceased who was a Superintending Engineer (Electricity) in the service of the Government of Andhra Pradesh. He was charged with an offence under section 302, Indian Penal Code for having committed the murder of his wife by shooting her with a revolver. During the investigation of the offence he was placed under suspension with effect from August 10, 1959 and was allowed subsistence allowance for some time. His defence at the trial was that while his wife was picking up the revolver from the teapoy on which he had kept it, suspecting that he would shoot himself with it, it went off accidently and killed her. This defence was accepted by the Sessions Judge and he was acquitted. On appeal by the State the High Court of Andhra Pradesh set aside the acquittal and convicted him of an offence under section 302, I.P.C. and sentenced him to undergo imprisonment for life. He thereupon sought and obtained special leave from this Court to prefer an appeal. During the pendency of the appeal he died. According to the applicants a sum of Rs. 40,000/ would be due to the deceas ed, being the difference between the subsistence allowance actually paid by the Government to him and the total emolu ments that would have been payable to him from the date of (2) (1) 259 suspension till his death and that they as his legal heirs would be entitled to act this amount in case the conviction and sentence are set aside by this Court. In support of his contention that the appeal has not abated by reason of the death of the appellant Mr. K. R. Chaudhuri points out that section 431 of the Code of Criminal Procedure (hereafter referred as the Code) which speaks about appeals is limited in its application to appeals under Ch. XXXI of the Code and would not fetter the powers of this Court under article 136 of the Constitution to hear an appeal brought before it by special leave even though the person who brought it is no longer alive. It is no doubt true that section 431 of the Code only says that appeals under section 411A, sub section (2) and section 417 shall finally abate on the death of the accused and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the appellant. It does not, therefore, in terms apply to an appeal permitted to be preferred by this Court in exercise of its discretion under article 136 of the Constitution. The argument of Mr. Chaudhuri is that the power conferred upon this Court by article 136 is wide and discretionary and is analogous to that conferred upon the High Court by section 439 read with section 435 of the Code. Therefore, upon an analogy of the decision of this Court in Pranab Kumar Mitra vs The State of West Bengal and another(1) this Court has the power to hear the appeal and to permit the applicants to prosecute it. He does not contend that the applicants have a right to be brought on the record in place of the deceased appellant but submits that to meet the ends of justice it would be right and proper to permit the applicants to prosecute the appeal because if it succeeds they will be able to claim from the Government the arrears with respect to salary due to their deceased father from the Government. It seems to me that the decision upon which reliance has been placed has no bearing upon an appeal brought to this, Court by special leave. It is no doubt true that the power conferred by section 435 of the Code on the High Court and certain other courts and by article 136 of the Constitution on this Court is discretionary. In so far as the High Court and certain other courts are concerned the discretion is to call for and examine any record of any proceeding before an inferior criminal court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed by the inferior court and as to the regularity of any proceeding of such court. Under section 435 these courts have power to act in this manner suo motu and section 440 provides that no party has a right to be heard either (1) [1959] Supp. 1 S.C.R. 63. L/d)D)ISCI 9,a) . 260 personally or by a pleader before such court, with one exception. That exception is that the High Court cannot make an order under section 439 of the Code to the prejudice of an accused person unless he is given an opportunity of being heard either personally or by pleader in his defence. When the record comes before the High Court it may in its discretion exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338 and has also the power to enhance the sentence. Article 136 of the Constitution confers discretion upon this court whether to grant special leave or not. But this Article does not confer any power upon this Court to call for the record of any court or tribunal suo motu for the purpose of examining it and making an appropriate order. It only empowers this Court to grant leave to a person to bring his appeal before it and afford him an opportunity of showing such error as may be existing in the judgment or order appealed from. There is a fundamental difference bet ween a power which is exercisable by a Court suo motu and a power which can be exercised only when it is moved in that behalf by a party. For the exercise of suo motu power the appearance of a, party before the Court concerned is not a prerequisite. Indeed as section 440 provides, it is for the Court to decide whether or not to allow the party to appear before it and be heard. But of course the principle of natural justice would preclude a court even in such a case from making an order to the prejudice of a party without giving the party an opportunity to be heard. In so far as an appeal is concerned, by whichever way it is brought, whether as of right conferred by a provision in the Constitution or by any other law or by special leave the appellant has a right to be heard and a right to prosecute the appeal. A Court exercising suo motu powers may choose at any stage to drop the proceeding and not proceed to examine the records at all. But as long as an appeal is pending before a Court and there is a person legally competent to prosecute it and there is no legal impediment to its being heard, the Court has no discretion to refuse to go on with the appeal even though initially it may have been brought before it by its leave. As soon as the leave is granted a right accrues in favour of the party who has been granted leave. It may be that where this Court finds that leave has been improperly obtained or given it may revoke the leave. But that is quite different from saying that without revoking the leave it can drop the appeal. This distinction between revisional powers and appellate powers has been adverted to in the decision relied upon(1) at p. 70. Sinha, J. (as he then was) has observed: "The revisional powers of the High Court vested in it by section 439 of the Code, read with section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is (1) [1959] Supp. 1 S.C.R. 63. 261 done in accordance with the recognized rules of Criminal Jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognized by the courts, and the right of appeal, where one exists, cannot be denied in exercise of the discretionary powers even of the High Court. " Thus, when the special leave granted by this Court has not been revoked it can exercise with respect to the appeal before it what may be called appellate powers. While hearing an appeal from the decision of a High Court, this Court will, therefore, be competent to exercise only such powers as the High Court itself could exercise in relation to the appeal. In so far as the procedure for hearing a criminal appeal by special leave is concerned this Court has framed certain rules. Order XXI of Supreme Court Rules, 1950 contains those rules. Rule 23 of that Order provides for the entering of appearance by parties in the appeal. Rule 24 provides for the filing of statements of case by the parties. Rule 25 provides for setting down the appeal for hearing. Rule 26 empowers the Court to direct the engagement of an Advocate at the cost of the Government in a proper case where the accused person is not represented by an Advocate 'on record of his choice. Rule 27 provides for giving a notice to the accused where he is not represented on the date fixed for the hearing of the appeal and permits the accused person if he so wishes to present his case by submitting his argument in writing and provides for the consideration of the written argument at the hearing. Sub rule (2) of that rule dispenses with necessity of production of the accused person in custody at the hearing of the appeal. There is no express rule which states as to what has to be done where the accused person who is an appellant is not present or represented at the hearing of the appeal. Order XLV, rule 5, however, preserves the inherent power of the Court to make such orders as may be necessary to meet the ends of justice or to prevent the abuse of the process of the Court. Thus this Court has the power to prevent the abuse of its process and it will be an abuse of its process if the appellant despite service of notice of the date of hearing chooses to remain absent at the hearing. Now, just as the Court can, under r. 18 of 0. XXI dismiss an appeal for non prosecution where the appellant refuses to take the necessary steps for bringing the appeal to hearing, it must be deemed to have similar power to dismiss it where the appellant is not present or is not represented. Where the absence of the appellant is due to the fact that he is dead it would still be a case of non prosecution and, therefore, this Court would have the right and the duty to dismiss the appeal. Since the power 262 to prosecute the appeal inhered in the appellant alone, no one: else can claim to exercise it unless the law conferred such a right upon that other person. This the law may do expressly as. it has done in 0. XXII of the Code of Civil Procedure or impliedly as it has done in section 431 of the Code. Apart from the fact that in a criminal matter the issue is personal between the accused person and the State the fact remains that the right of appeal is also personal to the appellant. It cannot be allowed to be exercised by another unless there is some provision in law which would permit it to be exercised or unless such a course is permissible by reference to a principle. There is admittedly no express provision permitting the substitution of the legal representatives of a deceased appellant in a criminal appeal brought to this Court by special leave. We have, however, to bear in mind the policy of the law as enacted in section 431 of the Code. The policy is that every criminal appeal under chapter XXXI will abate except an appeal from a sentence of fine. Thus, instead of there being any principle on the strength of which the legal heirs of a person could be allowed to prosecute after his death an appeal brought by him challenging his conviction and sentence of imprisonment the policy of the law is definitely opposed to it. Moreover, only a person who can properly represent a deceased appellant can be allowed to be brought on record in his place and prosecute the appeal. That is the principle upon which the provisions of 0. XXII of the Code of Civil Procedure are based. That again is the principle followed by the Courts in England in allowing appeals in which the challenge was to a fine imposed upon the appellant to be continued by the executors and administrators of the deceased appellant. As an instance of this would first refer to Hodgson vs Lakeman(1). In that case Viscount Caldecote C.J., permitted the executors of the deceased appellant claiming an interest in the appeal against his conviction and sentence of fine to prosecute the appeal. The fine, though a small one, would have been a burden on the estate and thus the executors could be said to have had an interest in having that burden removed. This case was distinguished in Regina vs Rowe(2) In that case the widow of the deceased appellant sought leave to prosecute the appeal in which he had challenged his conviction on four counts of obtaining money by false pretences and the sentence of imprisonment to 18 months. The ground on which the widow 's application was supported was that the conviction against her husband affected her chances of employment and her position among her friends and that if interest is the test, then the widow also had an interest. This argument was repelled by Lord Goddard C.J. who said that the Court cannot take notice of that because the interest she (1) (2) 263 has was not a pecuniary one. It was further urged before the Court that where any person might be prejudiced by a conviction against a deceased person, and an appeal was lodged before the death of that person, the Court should allow the appeal to be continued by that person so that if there had been a miscarriage of justice and the heirs of the deceased were living under the shadow of the fact that their relative had died a convict, the interests of justice would require that the appeal be heard. To this argument the answer of the learned Chief Justice was that this would be a case for making an application for a tree pardon. In the course of the judgment he observed: ". . . we cannot allow a widow or an executor or an administrator of a deceased person to appeal to this court unless they can show a legal interest. If a person is sentenced to pay a fine and dies having appealed, or even if he dies after payment of the fine it might be immediately afterwards it may be that the court would allow executors or administrators to appeal merely on the ground that if the conviction were quashed they could recover the fine for the benefit of th e estate of the deceased which they are bound to administer. In Hodgson vs Lakeman(1) to which our attention was called, which was a case before the Divisional Court, but the principle would be the same, the appellant was dead, and the court allowed the executors to continue the appeal because there was a pecuniary interest. Supposing, as sometimes happens, a man is convicted on indictment and fined pound 500; the money has to be paid, and the Crown can recover that money whether he is alive or dead, for it can recover it against his estate, and, therefore, it would be an injustice if the executors were not allowed to appeal and to say that the conviction was wrong, because, if it was wrong, the money would be saved. It may be that it is artificial to say that if there is a pecuniary penalty an appeal might lie, whereas if corporal punishment or imprisonment is imposed there cannot be an appeal, but at the same time I do not see any ground on which we can say in the present case that anybody has an interest. It may be that the widow would be very glad to have her husband 's name cleared, but we cannot take any notice of that sentimental interest. There is nobody affected now by the judgment of the court because 264 the judgment was a sentence of imprisonment and the prisoner has died. It would be a very novel step if, in these circumstances, we said that the court would entertain an appeal. " In Short and Mellor 's (The Practice on the Crown Side of the King 's Bench Division, second edition) it is stated at p. 425 that the practice does not seem to be uniform and reference is made to some cases. In one of them Hesketh vs Atherton(1) the counsel was allowed to argue an appeal after the death of one of the parties. But in Leach vs Wanstead School Board (2) (2) wherein a conviction against the father of a child for not sending the child to school was challenged in appeal and the father and the child had died in the meanwhile, the Court refused to allow the case to be argued on the ground that there was no interest surviving. In Siberry vs Connolly(3) where there was a claim for seaman 's wages, the appellant 's executors were allowed to take the place of the deceased appellant. In Constantine vs Illingworth(4) where the defendant in a criminal case had died, the Court ordered the case to be struck out. The same was done in Jones vs Fallowfield(5). In Rivers vs Glasse(6) where the respondent had died and the appellant had given notice to the executors to support the conviction, the Court heard and determined the case and gave costs to the respon dent 's executors. The position so far as the United States is concerned is set out as follows(7): "The death of an accused ordinarily abates a criminal action, including review proceedings pending at that time. The interest of the deceased 's representatives or next of kin in clearing his good name was held in United States vs Mook(8) not to be sufficient to allow the appellate court, after the defendant 's death pending his appeal from a conviction of violating the Interstate Commerce Act, to decide the appeal on the merits. The court however, added: 'we think it may not be amiss to say that it seems to us that the next of kin of a convicted person who dies pending an appeal have an interest in clearing his good name, which Congress might well believe would justify a change in the law." ' Thus in that jurisdiction also the basis of intervention, when permitted, is a survival of an interest in the heirs or executors of the deceased. That interest would only be a pecuniary one (1)Short and Mellor at p. 425.(2) ibid. (3)ibid. (4) ibid. (5)ibid. (6) ibid. (7) ; Series, p. 1879.(8) 265 and where the estate is not affected by the conviction there would be no ground for allowing the intervention of the heir or executor. It may be that the interest of the heirs of the deceased convict to clear his name should be recognised and they ought to be allowed an opportunity to clear it. But unless it is recognised by the legislature the court cannot take notice of it. So far as the Court is concerned, the only question arising in the appeal before us is whether the conviction and sentence of imprisonment are correct in law. The only person who had an interest in the appeal before the Court in showing that both were not justified was the appellant and since he is dead, the interest which he had ceases to exist and cannot pass to anyone. Another case which was referred to at the bar was The State of Kerala vs Narayani Amma Kamala Devi(1) in which the decision in Pranab Kumar Mitra 's case (2) was relied upon and reference was made to Imperatrix vs Dongaji Andaji(3) In that case also the question was whether the High Court could exercise its revisional powers against an accused person even after his death. There the Court was not concerned with its own powers with respect to a criminal appeal brought before it by special leave. It is then said that the applicants have an interest inas much as the estate of the deceased appellant would be enriched by Rs. 40,000/ if this Court ultimately finds the appellant innocent and if the Government, acting on the basis of the decision of this Court which is binding upon it, rescinds the suspension order passed against the appellant and in conformity with it pays the arrears of salary due to the appellant. This interest is not a direct interest in the sense that it cannot arise out of the decision of this Court even if it is in favour of the appellant. The only interest which the applicants have is a. contingent one and is not one which could flow directly out of the ultimate decision of this Court. If we may mention, the argument advanced in Rowe 's case(4) before Lord Goddard C.J., that by clearing her deceased husband 's name the widow 's chances of securing employment would improve was not accepted as creating a pecuniary interest such as to justify granting her permission to prosecute the appeal. Indeed, the legislature has, by limiting in section 431 of the Code the survival of appeals to appeals against sentences of fine has chosen to recognise only one kind of interest and no other. There could be several other kinds of interest, as was suggested during the arguments at the bar. But this Court, in (1)[1962] Supp. 3 S.C.R. 943. ( 2 ) [1959] Supp. 1 S.C.R. 63. (3) (4) 266 exercise of its inherent powers or discretionary powers, would not be acting according to correct legal principles in recognising a kind of interest which the legislature has not chosen to recognise. In the circumstances, therefore, I am clear that the applicants ought not to be granted leave to prosecute the appeal. Leave to prosecute appeal refused.

The appellant was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court for the offence of the murder of his wife. He was granted special leave to appeal by this Court. During the pendency of the hearing of this appeal the appellant died. After his death his sons and daughter applied to this Court for permission to continue to prosecute the appeal. It was pleaded by the legal representatives of the appellant that though that sentence of imprisonment could no longer be executed, it still affected the property of the deceased and the legal representatives were, therefore, interested in the appeal and should be permitted to continue it. The appellant, who held a high office in the Government of Andhra Pradesh had been suspended during the investigation of the charge against him and he was dismissed from service under certain service rules on his conviction. During this time the appellant had only been given a small allowance. On these facts it was pleaded that if the conviction was set aside, the estate of the deceased would be entitled to receive the full salary from the Government. Held (Per Sarkar, J.): (i) Neither section 431 nor the cases men tioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the code of criminal procedure which is dealt with by section 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra 's case, while as for the English case, it is only of persuasive value. Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63 and Hodgson vs Lakeman, , distinguished. (ii).The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it. This principle applies in appeals, revisions, and in petitions under article 136 of the Constitution. A sentence of fine no doubt affects the property. In the present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become infructuous. In the present case the effect of the sentence imposed in this case being set aside would not directly entitle the legal representatives to the salary. They will have to obtain necessary orders from the Government for the purpose. 252 Held (Per Hidayatullah, J.): (i) This was an appeal against a sentence of imprisonment and an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punish ment of an offender and not with the trial of an abstract issue about the truth or falsity of a prosecution case. The same principle must apply to appeals after conviction, except in so far as a judgment already rendered touches assets which would come to the legal representative. In so far as personal punishment (other than a fine) is concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside becomes infructuous and abates. Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63, Pritam Singh vs State, ; , distinguished. Hodgson vs Lakeman, [1943] L.R.K.B. 15, Baghis vs Rowes , referred to. (ii).The principle laid down in Pranab Kumar Mitra vs The State of. West Bengal and Another and in Pritam Singh vs The State has.no application to the present matter because there is no analogy between an appeal by special leave and a revision under the code. The present case is not a case where the legal representatives after the death of the offender have to meet the liability of a fine or are required to protect the assets which they claim should reach them. In the present case no claim of the petitioners is jeopardized directly, by the judgment. Their claim is dependent upon the administrative action of Government which may not proceed upon the result of criminal prosecution. This appeal was only concerned with the correctness or otherwise of the conviction and not with any monetary claims depending upon the result of the appeal. In such a situation the ordinary rule that a criminal proceeding against a person comes to an end on his demise must apply also to special appeals in this court, such as this, even though the provisions of the Criminal Procedure Code may not be directly applicable. Held (Per Mudholkar, J.): (i) The decision of this court in Pranab Kumar Mitra vs The State of West Bengal has no, bear ing upon an appeal brought to this court by special leave. It is no doubt true that the power confer red by section 435 of the Code on the High Court and certain other courts and by Article 136 of the Constitution on this Court is discretionary. Under section 439 of the Code the High Court can exercise any of the powers conferred on a court of appeal by sections 423, 426, 427 and 428 or on a court by section 338 and has also the power to enhance the sentence. Under Section 435 of the Code, the High Court can suo motu call for the record of any inferior court but this power cannot be exercised by this court under article 136 of the Constitution. Therefore there is a fundamental difference between the power of the High Court in revision and the power of this Court in article 136 of the Constitution. Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63, distinguished. (ii).In a criminal matter the issue is personal between the accused person and the State and the right of appeal is also personal to the appellant. There is admittedly no express provision permitting the substitution of legal representatives of a decreased appellant in a criminal appeal brought to this Court by 253 special leave. The policy of the law discernible from section 431 of the Code has to be borne in mind. The policy under section 431 of the Code is that every criminal appeal under chapter XXXI will abate except an appeal from a sentence of fine. There is no provision which prescribes the continuation of the appeal on the death of the appellant in cases where the sentence is of imprisonment. The interest of the legal representatives in the present case is not a direct interest in the sense that it cannot arise out of the decision of this court even if it is in favour of the appellant. The only interest which the applicants have is a contingent one and is not one which could flow directly out of the ultimate decision of this Court. Hodgson vs Lakeman, (1943) L.R.K.B. 15, Regina vs Rowe, , Hesketh vs Atherton, Leach vs Wanstead School Board, Siberry vs Connolly, Constantine vs Illingworth, Jones vs Gallowfield, Rivers vs Glasse, (all cited in Short and Mellor, Practice on the Crown Side of the King 's Bench Division 2nd Ed. at p. 425), United States vs Mook, , The State of Kerala vs Narayani Amma Kamala Devi, [1962] Supp. 3 S.C.R. 943 and Imperatrix vs Dongali Andaji, , referred to and discussed. (iii). .The Legislature has by limiting in section 431 of the Code the survival of appeals to appeals against sentences of fine has chosen to recognise only one kind of interest and no other. This Court in exercise of its inherent powers or discretionary powers would not be acting according to correct legal principles in recognising a kind of interest which the legislature has not chosen to recognise. In the circumstances the applicants ought not to be granted special leave to prosecute the appeal.

Civil Appeal No. 3634 (NEC) of 1989. From the Judgment and Order dated 11.8.1989 of the Karnataka High Court in Election Petition No. 6 of 1988. M.C. Bandare, Ranjit Thomas and Mrs. C.K. Sucharita for the Appellant. Shanti Bhushan, B.R.L. Iyenger, R.B. Mehrotra and E.C. Vidyasagar, for the Respondents. For the (State of Karnataka) M. Veerappa. Raju to the State Legislative Coun cil, and directing the recount of the votes after excluding those of 242 nominated members. The election was held by adopting the 'single transferable vote method '. The polling took place on 3.7. 1988 and the counting was taken up on the next date, that is, 4.7. 1988. After several rounds of counting the appellant was declared as the successful candi date. The election in question relates to the Chitradurga Local Authorities Constituency, comprising 121 Mandal Pan chayats. The last date and time fixed for receiving nomina tion papers was 3.00 p.m. on 3.6. According to the appellant 's case, a decision was taken by the Chitradurga Zilla Parishad in its special meeting held on 28.5. 1988 to nominate two members from each Mandal Panchayat, that is, a total number of 242 members. Accordingly, steps were taken under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Parishads Act) read with the rules framed thereunder, and 242 members were duly nominated in time to be included in the electoral roll. This has been denied by the election 340 petitioner respondent No. 1, as also some of the respondents who contested the election. According to their case, the inclusion of the names of the nominated members in the electoral roll took place after the period for nomination was over and they were, therefore, not included in the electoral roll in the eye of law. The main question in the case which thus arises is as to whether the names of the 242 nominated members were included in the electoral roll within the time permitted by the law. The Deputy Commissioner, who was impleaded in the elec tion petition as the 5th respondent (in this appeal also he is respondent No. 5), had triple role to play in connection with the disputed election. He was authorised under the Parishads Act and the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Election) Rules, 1985 (hereinafter referred to as the Parishads Rules) to take steps for completing the nomination of the members; under section 13B of the Representa tion of the People Act, 1950, he was the Electoral Registra tion Officer for preparation and revision of the electoral roll; and he was also the Returning Officer under the Repre sentation of the People Act, 1951. According to the case of the appellant, a resolution was passed by the Zilla Parishad on 28.5. 1988 nominating the aforementioned 242 members, and the Chief Secretary of the Zilla Parishad sent the list of the names to the Deputy Commissioner on 30.5. The Deputy Commissioner was, under section 5(9) of the Parishads Act, required to publish the said names so as to complete the process of nomination. He was also vested with the jurisdic tion to include the names in the electoral roll under the provisions of the Representation of the People Act, 1950. It is relevant to note at this stage that the question of inclusion of the names in the electoral roll could arise only after the nomination was complete in the eye of law. A nominated person was entitled to be included as a voter for the election to the Council Constituency after he became a member of the Mandal Panchayat and not before. Having learnt about the nominations on the eve of the election, some persons challenged the same and objected before the Deputy Commissioner to the proposed publication. However, the Deputy Commissioner on 1.6.1988 passed an order directing the necessary steps to be taken under the Parishads Act, and accordingly a list of the nominated members was pasted on the notice board of the office of the Deputy Commissioner. Before the nominated persons could be treated to have become members of the Panchayats it was necessary that certain other steps also were taken in accordance with the Parishads Act and the Parishads Rules. Subsection (1) of section 40 of the Parishads Act, which is mentioned below, 341 makes it clear that a nominated person becomes the member of a Mandal Panchayat only on the publication of his name under section 5(9): "40. Commencement of term of Office (1) The term of office of the members elected at a general election or at a second election held under sub section (7) of section 5, or nominated shall commence on the date imme diately after the expiry of the term of office of the out going members of the Mandal Panchayat or the period of appointment of an Administrative Committee or Administrator under section 8, or on the date of publication of their names under sub section (9) of section 5, whichever is later. " The manner of publication of the names has been prescribed by r. 73 of the Parishads Rules in the following terms: "73. Publication of names of members elected or nominated to Mandal Panchayat. The Deputy Commissioner shall, as soon as conveniently may be, publish the list containing the names of the members elected or deemed to have been elected or nominated to the Mandal Panchayat by causing such list to be affixed on the notice board of his office, office of the Tahsildar, concerned Mandal Panchayat and in the Chavadi. " With a view to complete the nomination, the Deputy Commis sioner sent out the names for affixing the same on the notice boards of the office of the concerned Tahsildars and Mandal Panchayats and in the Chavadis. The Deputy Commis sioner could have taken steps for inclusion of the names in the electoral roll of the State Council Constituency after receipt of the information of their due publication in the offices situated at different places. There is a serious dispute as to when the necessary information became avail able at Chitradurga and the formal steps of including those names in the electoral roll were actually taken. After examining the evidence led by the parties, the High Court has held that the names were not included in the electoral roll by 3.00 p.m. on 3.6.1988. Mr. M.C. Bhandare, the learned counsel appearing in support of the appeal, has contended that the High Court fell in grave error in deciding the disputed issue against the appellant as it failed to 342 take note of the provisions of the Explanation to section 40(1) of the Parishads Act, which reads as follows: "Explanation. When the names of members elected at a general election or at a second election held under sub section (7) of section 5 or nominated are published on more than one date, the date by which the names of not less than 2/3rd of the total number of members has been published shall be deemed to be the date of publication for ' purposes of this section. " The learned counsel argued that the evidence on the record establishes that information of the publication of the names of more than 2/3rd of the total number of nominated persons had reached the Deputy Commissioner in time for the amend ment of the Council Constituency roll and the Deputy Commis sioner had actually made an order for the inclusion of the names in the roll on 2.6.1988. Accordingly, the final elec toral roll including the nominated members was ready in the office of the Returning Officer, and the appellant, as a matter of fact, had inspected the same. Reliance has been placed on his deposition as well as on the documentary evidence in the case. The most important evidence in the case is to be found in the statement of the Deputy Commissioner examined as P.W. 4. Besides, the election petitioner examined several other witnesses. An examination of evidence on record leads to the conclusion that the Chief Secretary of the Zilla Parishad had sent the list of the nominated members to the Deputy Commissioner on 30.5. 1988 and a copy thereof was placed on the notice board of the Deputy Commissioner 's office on 1.6.1988. However, that did not complete the process of nomination. The provisions of section 40(1) of the Parishads Act make it abundantly clear that a nominated person would become a member of the Panchayat only after due publication of his name in accordance with r. 73. It was therefore necessary to have the names of the nominated persons affixed on the notice board of the office of the Tahsildars, the notice boards of the Mandal Panchayats and in the Chavadis. Mr. Bhandare is right that in view of the Explanation to section 40(1) it was not necessary for the Deputy Commissioner to have waited for the information in this regard from all the places. On his satisfaction that the publication of 2/3rd of the total number of the names were complete, he was free to proceed further and to revise the electoral roll under the Representation of the People Act, 1950 by including all the nominated members. But the ques tion is as to when the Deputy Commissioner 343 did receive the information about the 2/3rd of the total number, and further whether he, as a matter of fact, revised the electoral roll before 3.00 p.m. on the 3rd of June, 1988. It is significant to note that the electoral roll did not get automatically amended on the completion of the process of nomination of the additional members. Ordinarily the question of inclusion of a new name in the electoral roll arises only when an application is made before the Electoral Registration Officer in this regard, but the power can be exercised by the Officer even without such an appli cation. In the present case it appears that a tactical battle was going on in the political arena between the two rival groups; one attempting to get the electoral roll amended by the inclusion of the nominated members and the other trying to foil it. The Deputy Commissioner was under pressure from both sides, and as the evidence discloses, he had to consider the different stands taken before him, which slowed down the entire process. Let us examine the evidence in this background. The Deputy Commissioner has, in his evidence, stated that his office received the information about the nomina tion from the Zilla Parishad on 30.5. 1988 when he was at Bangalore. He returned back to Chitradurga on 31.5. 1988 and examined a copy of the resolution of the Parishad as also the list of the nominated persons. Soon thereafter he was approached by the two groups, one supporting the resolution and the other opposing it. Ultimately he decided to publish the list as required by section 5(9) of the Parishads Act read with r. 73 of the Parishads Rules. Accordingly, a copy of the list was placed on the notice board of his office and lists for the publication in the Taluk offices were handed over to the Tahsildars who were already present in Chitra durga The lists for the publication in the offices of the Mandal Panchayats and Chavadis, which were scattered at considerable distances, were sent to the Chief Secretary of the Zilla Parishad. The Deputy Commissioner postponed the further step for modification of the electoral roll awaiting the report on publication from the different offices. Some reports from the Taluk offices were received on 1.6.1988 itself, but the Deputy Commissioner in his evidence was not in a position to give the details. His examination in chief was, therefore, discontinued and he was asked to bring the documents on the next date with reference to which he could answer the further questions. Accordingly, he later appeared with the papers and stated that the last reports regarding the publication from the Taluk Office of certain places were received on 4.6.1988. In his cross examination the Deputy Commissioner stated that on the basis of his records he could say that he had received reports from 5 Taluk Offices only on 1.6.1988, and 344 none from the Mandal Pancnayats; and on 2.6.1988 he had received reports about the publication in the Mandal Pan chayats from 2 Taluks. As there were only 9 Taluks in his district, it can be presumed that information about the publication of 2/3rd number at Taluk offices had reached the Deputy Commissioner by the evening of the 2nd June, 1988. However, there does not appear to be any relevant evidence available on the records, and none has been shown to us by the learned counsel, with regard to the publication of the requisite number of names in the Mandal Panchayat offices and in the Chavadis. It has been contended on behalf of the appellant that since the burden is on the election petition er to prove such facts which may vitiate the election, he must fail in the present state of evidence. Before adverting to this aspect we propose to consider the other evidence relating to the revision of the electoral roll. The electoral roll was produced before the High Court and was marked as Ext. Although it ought to have borne the dates of its preparation and revision, none is to be found there. The inclusion of the names of the nominated members was, according to the evidence, done by attaching slips to Ext. The Deputy Commissioner was unable to state as to the date on which Ext. P 6 was prepared and typed. So far the "updated Voters ' List" was concerned, it was placed on the notice board of the office of the Deputy Commissioner at 8.55. p.m. on 3.8.1988, after a lot of wrangling between the rival groups. In answer to a question in cross examination the Deputy Commissioner stated, "I cannot say if the preparation of this list was complete by 3.00 p.m. on 3.6.1988 as it is a ministerial part of it." As has been mentioned earlier, the dispute about the validi ty of the belated nominations had been raised on 31.5. 1988 before the Deputy Commissioner when he returned to Chitra durga from Bangalore and he took a decision on 1.6.1988 to proceed with the publication so as to complete the process of nomination. According to his statement, which he made after verifying from the documents, the necessary informa tion from the Mandal Panchayats and Chavadis started reach ing him on 2.6.1988. But they were inadequate as they were only from two Taluks. At the earliest the information about the publication of the necessary number of names reached Chitradurga on 3.6.1988 when the two groups were arrayed against each other in his office, one urging the revision of the electoral roll and the other opposing it. The deadline was 3.00 p.m. on 3.6.1988 which was approaching fast. But it 345 is important to note that the Deputy Commissioner was not aware that the period available for the revision of the electoral roll was expiring in the afternoon. He was under a wrong impression that the entire calender date of 3.6.1988 was available for the purpose. Towards the end of paragraph 3 in his written statement the Deputy Commissioner categori cally stated that he "was under a bona fide impression that direction for the inclusion of the name in the electoral roll of the constituency shall be given under Section 23 at any time on the last date for making nominations". In the earlier writ petition between the parties (in which the issue raised was not decided) the respondent No. 5 had made a similar statement in paragraph 2 of his reply. Being under that wrong impression he was not in a hurry to take the decision in regard to the revision of the electoral roll quickly. The election petitioner, P.W. 1, was himself not a candidate but was an active supporter of one of the candi dates and was seriously involved in the question of the revision of the roll, and, as stated in his evidence, the publication of the names under r. 73 of the Parishads Rules was complete by 3.6.1988 only in some of the Mandal Panchay ats. After the deadline at 3.00 p.m. on 3.6.1988 was crossed an application, which has been marked as 'Annexure R III ', signed by the Secretary, District Janata Party, was given to the Deputy Commissioner asserting that no further additions or deletions in the electoral roll were permissible and an endorsement to that effect should be made by the Returning Officer. The Deputy Commissioner did not immediately give his reply thereto. The parties were also insisting for the publication of the electoral roll in its final shape. Ac cording to the further evidence of P.W. 1, the Deputy Com missioner promised them that he would contact the Chief Electoral Officer at Bangalore by telephone and only there after he would decide on his further action. The party workers including the witness awaited the further develop ment and at 8.55 p.m. the Deputy Commissioner declared that the names of the newly nominated members were included in the voters list. Soon thereafter he also replied to the letter of the Janata Party Secretary by a letter headed as "ENDORSEMENT", stating, "With reference to the above, you are hereby informed that action has been taken to include the nominated members by the Zilla Parishad to the Mandal Panchayat in the District and as per Section 27(c) read with Section 23(3) of the R.P. Act, 1950, the Electoral Roll for Local Authority Constituency has been up dated and a copy pasted in the office on 3rd June 1988 at 8.55 P.M." 346 Two other Janata Party members have been examined as P.Ws, 2 and 3 in the case supporting the above version. Mr. Bhandare has relied upon the oral evidence of the appellant wherein he claimed to have gone to the office of the Deputy Commissioner on 2.6. 1988 to secure a prescribed form for filing his nomination as a candidate in the elec tion and was allowed to examine the electoral roll which was kept on a table in the office. He asserts that after verify ing his name and serial number in the list he discovered that the names of nominated members were also included therein. He stuck to this story in the cross examination and insisted that it was at 11.00 in the morning on 2.6.1988 that he had seen the revised roll. It is difficult to accept his case on this evidence. According to the Deputy Commis sioner himself the report about the publication in the office of the Mandal Panchayats from only two Taluks were received by the evening of 2.6. 1988 and it is, therefore, not believable that the Deputy Commissioner had amended the roll before 3.6.1988. The Deputy Commissioner has not claimed to have revised the roll on 2.6.1988. On the other hand, he made a very significant assertion in his written statement in the present election petition which is quoted below: "The Deputy Commissioner issued direction for the inclusion of the names of nominated members on 3.6.1988 and the elec toral roll for local Authorities Constituency has been up dated and a copy pasted in the office on 3.6.1988 at 8.55 P.M." In the earlier writ petition also he had made a similar statement, as mentioned below, towards the end of paragraph 2 of his reply: "The Deputy Commissioner issued direction for the inclusion of the name of Respondents 3 to 246 on 3 6 1988 and the electoral roll for Local Authorities Constituency has been up dated and a copy pasted in the office on 3 6 1988 at 8 55 P.M." A plain reading of the above statement suggests that both the updating of the electoral roll and pasting a copy there of took place on 3.6. 1988 at 8.55 p.m. The statement cannot be interpreted to mean that the revision of the electoral roll had been done about 6 hours earlier. The circumstances that (i) the Deputy Commissioner was not able to assert in his evidence before the Court that the revision of the roll had taken place before 3.00 p.m.; (ii) he was under an impression 347 that the revision was permissible till the midnight; and (iii) in spite of the available documents to him he was not in a position to assert that the report of publication of the names of 2/3rd or more of the nominated persons in the offices of the Mandal Panchayats had been received in his office before the deadline, strongly support the case of the election petitioner. It has been contended on behalf of the appellant that the burden to prove that the names of the nominated members were not included in the electoral roll in time is on the election petitioner and unless he is able to lead acceptable evidence to discharge the same, the election petition is bound to fail. The argument is that the oral evidence led by the petitioner cannot be accepted for recording a finding that the controversial names had not actually been included in the electoral roll before 3.00 p.m. which was in the custody of the Deputy Commissioner. The fact that political opponents of the appellant who were opposing the inclusion of the names were repeatedly asking the Deputy Commissioner orally as well as in writing to inform them whether the names were actually included in the electoral roll or not itself shows that they could not be sure of the actual position till 8.55 p.m. The bald assertion of the witnesses for the petitioner in this regard cannot be given much weight. Thus the position, according to the learned counsel, available from the records of the case is that there is no reliable evidence on the crucial issue and, therefore, the election petition must be dismissed. Apart from supporting the finding of fact recorded by the High Court in favour of the election petitioner, Mr. Shanti Bhushan, learned counsel for the respondents, argued that the electoral roll must be held to have been modified in the eye of law only at 8.55 p.m. when the alleged inclu sion of the names was made public and not earlier. He rea lied upon the decision in Bachhittar Singh vs State of Punjab, [1962] Supp. 3 SCR 713. The appellant in that case was appointed as a Kanungo and later promoted as Assistant Consolidation Officer in the former State of Pepsu. A de partmental inquiry was held against him as a result of which he was dismissed by the Revenue Secretary. He preferred an appeal to the State Government. The Revenue Minister ex pressed his opinion in writing that instead of his dismissal he should be reverted to his original post of Kanungo. The said remarks were, however, not communicated to the appel lant officially and the State of Pepsu was merged with the State of Punjab. The matter was thereafter re examined and the Chief Minister passed an order confirming the dismissal of the appellant. This order was com 348 municated to the appellant which led to the filing of the writ petition in the High Court. The High Court dismissed the writ application and the appellant appealed before this Court by special leave. One of the questions considered by this Court was as to the effect of the order in writing by the Revenue Minister, Pepsu, recommending reversion of the appellant in place of his dismissal. For the reasons, men tioned below, the Court held that the order of the Revenue Minister was of no avail to the appellant. "Thus it is of essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communi cation the order cannot be regarded as anything more than provisional in character. As has been pointed out earlier, the evidence of the appellant that he had actually seen the final voters list in the office of the Deputy Commissioner must be rejected as unreliable. There is no acceptable evidence at all to show as to when the alleged corrections were made in the voters list. At 8.55 p.m. on 3.6.1988 the inclusion of the names was made public for the first time. The question is as to whether the electoral roll will be deemed to have been modified when it was made public at 8.55 p.m. or earlier when the actual correction in the list was made in the Deputy Commissioner 's office which fact was kept confiden tial in spite of repeated demands for information. Besides fixing the identity of the persons to be allowed to vote at the election, the purpose of the prepara tion of the roll is to enable the persons included therein to decide as to whether they would like to contest the election. It is also helpful to such persons in assessing their chances of success by reference to the voters finally included in the roll. For the purpose of canvassing also, the intending contestant requires a copy of the final vot ers ' list. The intending contestants and their supporters thus heavily depend upon the final electoral roll for decid ing their future conduct, and it is, therefore, extremely essential that it is made available to them before the expiry of the period fixed for filing the nomination papers. It the roll as it stood earlier, was confidentially correct ed by the Electoral Registration Officer concerned sitting in his office which did not see the light of the day, the same cannot be considered to have been prepared according to law. 349 The observations in Bachhittar Singh 's case will be fully applicable in as much as the Officer here also could recon sider the list again. Mr. Bhandare in reply relied upon the judgment in B.K. Srinivasan and Others vs State of Karnataka and Others, , and argued that unlike the Karnataka Town and Country Planning Act, 1961 and the Rules which were under consideration in the said case, the Representation of the People Act does not require a display of the electoral roll. The learned counsel is correct and he rightly said that putting the final voters list on the notice board is not a necessary requirement under the law. But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the Officer without any information or knowledge to persons who are interested in finding out its final shape. The reported case was dealing with the principle of subordinate legislation and in paragraph 15 of the judgment made important observa tions which support the respondents ' point of view. It was stated thus: "There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified direct ly and reliably of the law and all changes and additions made to it by various process. Whether law is viewed from the standpoint of the 'conscientious good man ' seeking to abide by the law or from the standpoint of Justice Holmes 's 'Unconscientious bad man ' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. " It was further observed that unlike Parliamentary legisla tion which is publicly made, delegated or subordinate legis lation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary and it was, therefore, necessary that subordinate legislation in order to take effect must be published or promulgated in some suitable manner whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation The decision instead of helping the appel lant is clearly against him. The vital difference between an Act of a legisla ture and a subordinate legislation was earlier noted in Harla vs State of Rajasthan, ; The Acts of the legislature are passed by the accredited representatives of the people who in theory can be trusted to 350 see that their constituents know what has been done, and this is done only after debates take place which are open to the public. The matter receives wide publicity through the media. But the case is different with the delegated legisla tion and, if we may add, also in the case of orders passed by the authorities like that in the present appeal before us. The mode of publication can vary but there must be reasonable publication of some sort. A reference may also be made to the decision in Fatma Haji Ali Mohammad Haji and Others vs The State of Bombay,, ; , where the question as to whether certain powers given to the Govern ment for issuing a direction to the Collector not to act in accordance with the prescribed rules had been actually exercised or not was under consideration. It was stated that the power had to be exercised in clear and unambiguous terms and, "the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public." Before closing this discussion we should refer to the case of State of Maharashtra vs Mayer Hans George, [1965] 1 SCR page 123, where the English decision of Johnson vs Saragant & Sons, , relied upon by this Court in Harla 's case came to be considered. The respondent Mayer Hans George was a German Smuggler who was carrying gold from Switzerland to Manila by an aeroplane which stopped at Bombay for sometime. The respondent did not get down from the plane but he was searched by the Indian Officers and was found to be carrying gold illegally. He was charged with criminal activity on the basis of a notification requiring him to declare the gold as transhipment cargo in the mani fest of the aircraft, which he had failed to do. His defence was that he had no knowledge of this notification. After his conviction by the trial court, the High Court on appeal acquitted him. The Supreme Court by a majority judgment reversed the decision and found him guilty on the ground that the notification had been published in the official gazette of India. The defence plea that since he was a foreigner and was, therefore, not expected to be aware of the notification was rejected. While discussing the argu ments addressed in the case, the Court appreciated the criticism of Prof. C.K. Allen against the judgment in John son vs Sargant, but there was no comment or suggestion against the correctness of the judgment in Harla vs The State of Rajasthan. On the other hand, the observations at page 163 G H are on the same lines. It was stated that where there is no statutory requirement as to the mode or form of publication, "we conceive the rule to be that it is necessary that it should be published in the usual 351 form i.e., by publication within the country in such media as generally adopted to notify to all persons concerned the making of the rules." Having regard to the nature and pur pose of the power for rectification of the electoral roll by the Electoral Registration Officer, the principle enunciated in the abovementioned cases must be held to be applicable. We accordingly hold that in the eye of law the electoral roll in question was not modified by the inclusion of the names of the nominated members before 8.55 p.m. on 3.6.1988. We, therefore, affirm the decision of the High Court and dismiss the appeal with costs. R.S.S. Appeal dismissed.

Respondent Landlady started an eviction proceeding under Section 13(1)(c) of the Bombay Rent Act against the petitioner tenant, running a shop, selling sweet meats and farsen on the tenanted premises, as he was convicted twice under the Prevention of Food Adulteration Act. Accepting claim of the land lady the High Court ordered eviction. Tenant contending that "convicted of using the premises" in Section 13(1)(c) be limited to offences involving the user of the premises that the provision does not cover non residential premises, filed the Special Leave Petition. Dismissing the petition, this Court, HELD: 1. Section 13(1)(c) covers both residential as well as non residential premises. If clause (c) is not applicable to business premises, there is no other similar provision in the Bombay Rent Act relating to the business premises. The consequence would be that the tenant in business premises could use the premises for committing any offence or he could commit nuisance and annoyance to the adjoining or neighbouring occupiers and yet claim that he is not liable to be evicted on that grounds. Whereas, the tenant of residential premises would not be able to commit such offence without the penalty of eviction. Such an interpretation would render the Section vulnerable to attack under Article 14 of the Constitution. [155D G]. 153 2. The expression "convicted of using the premises:" cannot be given too liberal construction so as to cover every case of conviction of the tenant.[156B] 3. Section 13(1)(c) was not intended to be a moral code of conduct for the tenant. For each and every offence committed at the premises, the tenant cannot be exposed to the risk of eviction. The crime may be forced upon the tenant at the premises by third parties. There may be casual or incidental crimes. There may be technical offences connected with the trade or licence to trade. There may be crimes where use of the premises has nothing to do except being the scene of the offence. All such cases cannot satisfy the requirements of Section 13(1)(c). [157A B] 4. The tenant must take advantage of his tenancy of the premises and of the opportunity they afford for permitting the crime. Only such crimes could fall within the scope of Section 13(1)(c). There need not be continuous for repeated user of the premises for committing such crimes. [157B C] [In the instant case, the tenant used the premises for carrying out illegal sale of adulterated food along with his usual business in sweet meats and farsen. He used the premises deliberately and taken advantage of his tenancy for committing the offences in the course of his trade. He can be evicted under Section 13(1)(c).] [157C D] section Schneiders and Sons Ltd. vs Abrahams,

Appeal No. 636 of 1967. Appeal by special leave from the judgment all order dated November 11. 1966 of the Allahabad High Court, Lucknow Bench in Writ Petition No. 226 of 1963. section T. Desai, J. P. Goyal, D. N. Jha and G. section the appellant. Sarjoo Prashad and O. P. Rana, for the respondents. Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment, dated November 11, 1966, of the Division Bench of tile Allahabad High Court dismissing the writ petition filed by tile appellant seeking to quash tile order of the State Transport Authority. dated March 20/21. The State Transport Authority had by this order rejected the appellant 's revision petition against the decision of the Regional Transport Authority oil the ground that a mere decision of the Regional Transport Authority limiting the number of stage carriages under section 47(3) of the (IV of 1939) hereinafter referred to as the Act could not form the subject matter of a revision application '. It was of the view that "when the Regional Transport Authority actually proceeds to fill Lip the vacancies, which it has decided to create, then the persons whose interests would be adversely affected, would have a right of representation before the Regional Transport Authority, and in the case of their representation being rejected by the Regional Transport Authority the will have a right of appeal before the State Transport Appellate Tribunal. " The High Court was of the view that an existing operator had no say in the matter of determination of the strength on a route under sub section (3) of section 47, and, it was in the discretion of the Regional Transport Authority to determine the strength on a route, after considering various matters enumerated in cls. (a) to (f) of sub section (1) of section 47. The High Court further observed that is the order passed under section 47(3), to revise which the appellant had filed a revision tinder section 64 A, was a good order and did not call for any interference, it did not consider it necessary to decide whether a revision lay against such an order under section 64 A of the Act. The learned counsel for the appellant, Mr. section T. Desai, con tends that an order under section 47(3) of the Act, whether it is quasijudicial or administrative, does affect the existing operators on the route and their representations must be considered by the Regional Transport Authority before passing an order tinder section 47(3). He further submits that a revision lay under section 64 A of the Act and the same should not have been dismissed on the ground that no revision lay. 637 The relevant statutory provisions are section 47 and section 64 A, of the Act, and read thus; "47. Procedure of Regional Transport Authority in considering application for stage carriage permit: (1) A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely: (a) the interests of the public generally ', (b) the advantages to the public of the set vice to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken; (c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served; (d) the benefit to any particular locality or localities likely to be afforded by the service; (e) the operation by the applicant of other transport services. including those in respect of which applications from him for permits are pending; (f) the condition of the roads included in the proposed route or area; and shall also take into consideration any representations made by persons already providing passengers transport facilities by any means along or near the proposed route or area. or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies: Provided that other conditions being equal, an application for a stage carriage permit from a co operative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners. (2) A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened: 638 provided that before such refusal an opportunity shall be given to the applicant to amend the time table so as to conform to the said provisions. (3) A Regional Transport Authority may, having regard to the matters, mentioned in sub section (1), limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region." "64 A. Revision The State Transport Authority may, either on its own motion or on an application made to it, call for the record of any case in which an order has been made by a Regional Transport Authority and in which no appeal lies, and if it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or illegal, the State Transport Authority may pass such order in relation to the case as it deems fit: Provided that the State Transport Authority shall not entertain any application from a person aggrieved by an order of a Regional Transport Authority, unless the application is made within thirty days from the date of the order: Provided further that the State Transport Authority shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard. " It would be noticed that sub section (3) of section 47 does not expressly say whether any representations can be made by persons already providing transport facilities or by associations representing persons interested in the provision of the transport facilities or by any local authority or police authority within whose jurisdiction the route or area lies. This is expressly mentioned in section 47(1). The learned counsel contends that the expression "matters mentioned in sub section (1)" occurring in sub section (3) refers back not only to matters mentioned in sub cls. (a) to (f) to sub section (1) in section 47 but also the right of representation mentioned in sub section We are unable to accept this line of reasoning as being sound. Even under section 47(1), the Regional Transport Authority can only have regard to the matters mentioned in sub cls. (a) to (f), and those matters may be brought to the notice of the Regional Transport Authority by representations. It could not have been the intention that representations would contain matters which the Regional Transport Authority could not take into consideration under section 47(1). This is not to say that the matters mentioned in 639 sub cls. (a) to (f) are exhaustive, but this point does not arise and we need not say anything as to this. Therefore, this line of reasoning does not assist the appellant. This Court in Abdul Mateen vs Ram Kailash Pandey(1) held that "where a limit has been fixed under section 47(3) by the Regional Transport Authority, and thereafter the said authority proceeds to consider applications for permits under section 48 read with section 57, the Regional Transport Authority must confine the number of permits issued by it to those limits and on an appeal or revision by an aggrieved person, the Appellate Authority or the Revisional Authority must equally be confined to the issue of permits within the limits fixed under section 47(3)". But this Court did not feel it necessary to decide whether under section 64 A, inserted by Motor Vehicles (Amendment) Act No. 100 of 1956, it was open to the State Transport Authority to vary a general order passed under section 47(3). If we look at the section, it would be noticed that section 64 A is very wide in terms; the only condition necessary for filing a revision is that it should be against an order made by the Regional Transport Authority and against which no appeal lies. The word "order" is wide, and there is no doubt that an order made under section 47(3) is an order within section 64 A because, as held by this Court in Abdul Mateen vs Ram Kailash Pandey (1) it binds the Regional Transport Authority and the State Transport Authority in dealing with applications under section 48. read with section 57, of the Act. Mr. Sarjoo Prasad, the learned counsel for the State, con tends that no revision lies at the instance of an existing operator because he cannot be called an aggrieved person, and secondly, that even if a revision lies, the appellant is not entitled to any relief on the facts of this case, under article 136 of the Constitution, because the appellant never approached the Regional Transport Authority in the first instance. We are unable to say that no existing operator can be aggrieved by an order made under section 47(3), increasing or decreasing the number of stage carriages; it would depend on the facts and circumstances of each case. In a particular case it may be to his advantage and he then would not file a revision against it, but if he files a revision when an order made under section 47(3) is prejudicial to his interests, there is no ground for denying him the right to approach the revisional authority and seeking its order. An order under section 47(3) affects the future working on a route and we are of the view that such an order would have repercussion on the working of the existing operators, whether for their good or not. The High Court, as stated above, was of the view that at the stage of section 47(3) existing operators would not be entitled to be heard by the Regional (1) ; 640 Transport Authority. But assuming that it is so, this does no affect the right of revision conferred by section 64 A. We need not in this case decide whether it is implied that existing operators would be entitled to be heard by the Regional Transport Authority before an order under section 47(3) is made. The learned counsel for the respondent further contends that a decision under section 47(3) is a tentative decision and can be revised. But assuming that it can be revised by the Regional Transport Authority, till the order is in operation it is binding on everybody and if a revision can be filed against the order under section 64 A, the aggrieved operator cannot be compelled to approach the Regional Transport Authority first to revise its order. 'This argument, in a way, concedes that an operator can be a person aggrieved by an order under section 47(3). The learned counsel for the appellant contends that if it is held that a revision lies under section 64 A against an order passed under section 47(3) of the Act, the State Transport Authority should be directed to hear the revision on merits. He says that the High Court had no right to go into the merits of the order itself. Ordinarily what Mr. Desai contends is correct, but here the facts are that the order under section 47(3) was passed as long ago as November. During the last five years demand for stage carriages on this route would have, in the ordinary course, increased by now. and further it has not been shown that the Regional Transport Authority has made any glaring mistake. For the aforesaid reasons. in exercising our discretion under article 136 of the Constitution we consider that we should not interfere with the order passed by the High Court. In the result the appeal fails and is dismissed. Under the circumstances there will be no order as to costs. V.P.S. Appeal dismissed.

The Regional Transport Authority, by an order under section 47(3) of the , fixed the number of stage carriages, by increasing their number on a particular route. The appellant, an existing operator, filed a revision against that order to the State Transport Authority, under section 64A, but the State Transport Authority held that a revision did not lie. The appellant then filed a writ petition in the High Court and the High Court dismissed it, holding that: (1) at the stage of section 47(3), existing operators were not entitled to be heard by the Regional Transport Authority, and (2) since the order of the Regional Transport Authority was good on merits, it was not necessary to decide whether a revision lay to the State Transport Authority. In appeal to this Court, HELD: (1) Unlike section 47(1), section 47(3) does not say expressly that representations could be made by existing operators and others. The expression in section 47(3) that 'the Regional Transport Authority may, having regard to the matters mentioned in sub section (1) ', only means that the Authority shall have regard to the matters mentioned in sub cls. (a) to (f) of section 47(1) and has nothing to do the right of making representations. [638F H] (2) But whether or not an existing operator has an implied right to be heard before an order under section 47(3) is made he can be aggrieved by an order made under that section increasing or decreasing the number of stage carriages depending on the circumstances of the case, and has therefore a right of revision under section 64A, the only condition for filing a revision being that it should be against an order made by the Regional Transport Authority against which no appeal lies. [639C D, F H] Abdul Mateen vs Ram Kailash Pandey, ; , re ferred to. (3) Since a revision could be filed under section 64A against the order under section 47(3) the aggrieved operator need not approach the Regional Transport Authority first to review its order. [640B C] (4) The High Court should have directed the State Transport Authority to dispose of on merits the revision petition against the order under section 47(3), and not gone into its merits itself, but, in view of the time that lapsed since the order was passed (five years, during which the demand for stage carriages must have increased), this Court would not interfere in the exercise of its jurisdiction under article 136. [640C E] 636

ition (Civil) No. 12739 of 1985. (Under Article 32 of the Constitution of India.) Petitioner in person. B. Datta, Additional Solicitor General, A.B. Diwan, F.S. Nariman, B.R.L. lyengar, Hardev Singh, Hemant Sharma, C.V.S. Rao, R.D. Aggarwal, Ms. section Relan, R.S. Sodhi, section Sukumaran, Ravinder Narain, D.N. Mishra, Aditya Narayan, Ms. Lira Goswami, section Kachwaha, Mohan, Ravinder Bana, K.C. Dua, K. Kumaramangalam, O.C. Jain and K.R.R. Pilai for the Respond ents. Raju Ramachandran for the Intervener. Soli J. Sorabji for Citizens Action Committee. The Judgment of the Court was delivered by BHAGWATI, CJ. This writ petition under Article 32 of the Constitution has come before us on a reference made by a Bench of three Judges. The reference was made because cer tain questions of seminal importance and high constitutional significance were raised in the course of arguments when the writ petition was originally heard. The facts giving rise to the writ petition and the subsequent events have been set out in some detail in the Judgment given by the Bench of three Judges on 17th February 1986, and it is therefore not necessary to reiterate the same. Suffice it to state that the Bench of three Judges 826 permitted Shriram Foods and Fertiliser Industries (hereinaf ter referred to as Shriram) to restart its power plant as also plants for manufacture of caustic chlorine including its by products and recovery plants like soap, glycerine and technical hard oil, subject to the conditions set out in the Judgment. That would have ordinarily put an end to the main controversy raised in the writ petition which was filed in order to obtain a direction for closure of the various units of Shriram on the ground that they were hazardous to the community and the only point in dispute which would have survived would have been whether the units of Shriram should be directed to be removed from the place where they are presently situate and relocated in another place where there would not be much human habitation so that there would not be any real danger to the health and safety of the people. But while the writ petition was pending there was escape of oleum gas from one of the units of Shriram on 4th and 6th December, 1985 and applications were filed by the Delhi Legal Aid & Advice Board and the Delhi Bar Association for award of compensation to the persons who had suffered harm on account of escape of oleum gas. These applications for compensation raised a number of issues of great constitu tional importance and the Bench of three Judges therefore formulated the issues and asked the petitioner and those supporting him as also Shriram to file their respective written submissions so that the Court could take up the hearing of these applications for compensation. When these applications for compensation came up for hearing it was felt that since the issues raised involved substantial questions of law relating to the interpretation of Articles 21 and 32 of the Constitution, the case should be referred to a larger Bench of five Judges and this is how the case has now come before us. Mr. Diwan, learned counsel appearing on behalf of Shri ram raised a preliminary objection that the Court should not proceed to decide these constitutional issues since there was no claim for compensation originally made in the writ petition and these issues could not be said to arise on the writ petition. Mr. Diwan conceded that the escape of oleum gas took place subsequent to the filing of the writ petition but his argument was that the petitioner could have applied for amendment of the writ petition so as to include a claim for compensation for the victims of oleum gas but no such application for amendment was made and hence on the writ petition as it stood, these constitutional issues did not arise for consideration. We do not think this preliminary objection raised by Mr. Diwan is sustainable. It is undoubt edly true that the petitioner could have applied for amend ment of the writ petition so as to include a claim for compensation but merely because he did 827 not do so, the applications for compensation made by the Delhi Legal Aid & Advice Board and the Delhi Bar Association cannot be thrown out. These applications for compensation are for enforcement of the fundamental right to life en shrined in Article 21 of the Constitution and while dealing with such applications, we cannot adopt a hypertechnical approach which would defeat the ends of justice. This Court has on numerous occasions pointed out that where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a Court of law for justice, it would be open to any public spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing a regular writ petition but also by addressing a letter to the Court. If this Court is prepared to accept a letter complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the Court for justice, there is no reason why these applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the oleum gas leak under Article 21 should not be entertained. The Court while dealing with an application for enforcement of a fundamental right must look at the substance and not the form. We cannot therefore sustain the preliminary objection raised by Mr. Diwan. The first question which requires to be considered is as to what is the scope and ambit of the jurisdiction of this Court under Article 32 since the applications for compensa tion made by the Delhi Legal Aid and Advice Board and the Delhi Bar Association are applications sought to be main tained under that Article. We have already had occasion to consider the ambit and coverage of Article 32 in the Bandhua Mukti Morcha vs Union of India & Ors., ; and we wholly endorse what has been stated by one of us namely, Bhagwati, J. as he then was in his judgment in that case in regard to the true scope and ambit of that Article. It may now be taken as well settled that Article 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to ' enforce the fundamental rights. It is in reali sation of this constitutional obligation that this Court has in the past innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, 828 particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning. Thus it was in S,P. Gupta vs Union of India, [1981] Supp. SCC 87 that this Court held that "where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitution al or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authori ty of law or any such legal wrong or legal injury or illegal burden is threatened, and any such person or determinate class of persons is by reason of poverty or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of per sons. " This Court also held in S.P. Gupta 's case (supra) as also in the People 's Union for Democratic Rights and Ors. vs Union of India, [1983] 1 SCR 456 and in Babdhua Mukti Mor cha 's case (supra) that procedure being merely a hand maden of justice it should not stand in the way of access to justice to the weaker sections of Indian humanity and there fore where the poor and the disadvantaged are concerned who are barely eking out a miserable existence with their sweat and toil and who are victims of an exploited society without any access to justice, this Court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or a social action group acting probono publico would suffice to ignite the jurisdiction of this Court. We wholly endorse this statement of the law in regard to the broadening of locus standi and what has come to be known as epistolary jurisdiction. We may point out at this stage that in Bandhua Mukti Morcha 's case (supra) some of us apprehending that letters addressed to individual justices may involve the court in frivolous cases and that possibly the view could be taken that such letters do not invoke the jurisdiction of the court as a whole, observed that such letters should not be addressed to individual justices of the court but to the Court or to the Chief Justice and his companion judges. We do not think that it would be right to reject a letter addressed to an individual justice of the court merely on the ground that it is not addressed to the court or to the Chief Justice and his companion Judges. We must not forget that 829 letters would ordinarily be addressed by poor and disadvan taged persons or by social action groups who may not know the proper form of address. They may know only a particular Judge who comes from their State and they may therefore address the letters to him. If the Court were to insist that the letters must be addressed to the court, or to the Chief Justice and his companion Judges, it would exclude from the judicial ken a large number of letters and in the result deny access to justice to the deprived and vulnerable sec tions of the community. We are therefore of the view that even if a letter is addressed to an individual Judge of the court, it should be entertained, provided of course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class of deprived or disadvantaged persons. We may point out that now there is no difficulty in enter taining letters addressed to individual justice of the court, because this Court has a Public Interest Litigation Cell to which all letters addressed to the Court or to the individual justices are forwarded and the staff attached to this Cell examines the letters and it is only after scrutiny by the staff members attached to this Cell that the letters are placed before the Chief Justice and under his direction, they are listed before the Court. We must therefore hold that letters addressed to individual justice of the court should not be rejected merely because they fail to conform to the preferred form of address. Nor should the court adopt a rigid stance that no letters will be entertained unless they are supported by an affidavit. If the court were to insist on an affidavit as a condition of entertaining the letters the entire object and purpose of epistolary juris diction would be frustrated because most of the poor and disadvantaged persons will then not be able to have easy access to the Court and even the social action groups will find it difficult to approach the Court. We may point out that the court has so far been entertaining letters without an affidavit and it is only in a few rare cases that it has been found that the allegations made in the letters were false. But that might happen also in cases where the juris diction of the Court is invoked in a regular way: So far as the power of the court under Article 32 to gather relevant material bearing on the issues arising in this kind of litigation, which we may for the sake of con venience call.social action litigation, and to appoint Commissions for this purpose is concerned, we endorse. what one of us namely, Bhagwati, J., as he then was, has said in his Judgment in Bandhua Mukti Morcha 's case (supra). We need not repeat what has been stated in that judgment. ' It has our full approval. We are also of the view that this Court under Article 32(1) is free 830 to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a funda mental right and under Article 32(2) the Court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. The power of the Court is not only in junctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide Bandhua Mukti Morcha 's case (supra). If the Court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the Court can injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile. We must, therefore, hold that Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases. We are deliberately using the words "in appropriate cases" because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the Court in a petition under Article 32. The infringement of the funda mental right must be gross and patent, that is, incontro vertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of theft poverty or disability or socially or economically, disadvantaged posi tion to require the person or persons affected by such infringement to initiate and pursue action in the civil courts. Ordinarily, of course, a petition under Article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamen tal right through the ordinary process of civil court. It is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under Article 32. This is the principle on which this Court award ed compensation in Rudul Shah vs State of Bihar, (AIR So also, this Court awarded compensation to Bhim Singh, whose fundamental right to personal liberty was grossly violated by the State of Jammu and Kashmir. If we make a fact analysis of the cases where compensation has been 831 awarded by this Court, we will find that in all the cases, the fact of infringement was patent and incontrovertible, the violation was gross and its magnitude was such as to shock the conscience of the court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the civil court for claim ing compensation. The next question which arises for consideration on these applications for compensation is whether Article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people. The issue of availability of Article 21 against a private corpo ration engaged in an activity which has potential to affect the life and health of the people was vehemently argued by counsel for the applicants and Shriram. It was emphatically contended by counsel for the applicants, with the analogical aid of the American doctrine of State Action and the func tional and control test enunciated by this Court in its earlier decisions, that Article 21 was available, as Shriram was carrying on an industry which, according to the Govern ment 's own declared industrial policies, was ultimately intended to be carried out by itself, but instead of the Government immediately embarking on that industry, Shriram was permitted to carry it on under the active control and regulation of the Government. Since the Government intended to ultimately carry on this industry and the mode of carry ing on the industry could vitally affect public interest, the control of the Government was linked to regulating that aspect of the functioning of the industry which could vital ly affect public interest. Special emphasis was laid by counsel for the applicants on the regulatory mechanism provided under the Industries Development and Regulation Act, 1951 where industries are included in the schedule if they vitally affect public interest. Regulatory measures are also to be found in the Bombay Municipal Corporation Act, the Air and Water Pollution Control Acts and now the recent Environment Act, 1986. Counsel for the applicants also pointed to us the sizable aid in loans, land and other facilities granted by the Government to Shriram in carrying on the industry. Taking aid of the American State Action doctrine, it was also argued before us on behalf of the applicants that private activity, if supported, controlled or regulated by the State may get so entwined with govern mental activity as to be termed State action and it would then be subject to the same constitutional restraints on the exercise of power as the State. 832 On the other hand, counsel for Shriram cautioned against expanding Article 12 so as to bring within its ambit private corporations. He contended that control or regulation of a private corporations functions by the State under general statutory law such as the Industries Development and Regula tion Act, 1951 is only in exercise of police power of regu lation by the State. Such regulation does not convert the activity of the private corporation into that of the State. The activity remains that of the private corporation, the State in its police power only regulates the manner in which it is to be carried on. It was emphasised that control which deems a corporation, an agency of the State, must be of the type where the State controls the management policies of the Corporation, whether by sizable representation on the board of management or by necessity of prior approval of the Government before any new policy of management is adopted, or by any other mechanism. Counsel for Shriram also pointed out the inappositeness of the State action doctrine to the Indian situation. He said that in India the control and function test have been evolved in order to determine wheth er a particular authority is an instrumentality or agency of the State and hence 'other authority ' within the meaning of Article 12. Once an authority is deemed to he 'other author ity ' under Article 12, it is State for the purpose of all its activities and functions and the American functional dichotomy by which some functions of an authority can be termed State action and others private action, cannot oper ate here. The learned counsel also pointed out that those rights which are specifically intended by the Constitution makers to be available against private parties are so pro vided in the Constitution specifically such as Articles 17, 23 and 24. Therefore, to so expand Article 12 as to bring within its ambit even private corporations would be against the scheme of the Chapter on fundamental rights. In order to deal with these rival contentions we think it is necessary that we should trace that part of the devel opment of Article 12 where this Court embarked on the path of evolving criteria by which a corporation could be termed 'other authority ' under Article 12. In Rajasthan Electricity Board vs Mohan Lal, ; this Court was called upon to consider whether the Rajasthan Electricity Board was an 'authority ' within the meaning of the expression 'other authorities ' in Article 12. Bhargava, J. who delivered the judgment of the majority pointed out that the expression 'other authorities ' in Article 12 would include all constitutional and statutory authorities on whom powers are conferred by law. The learned Judge also said that if any body of persons has authority to issue directions, the dis 833 obedience of which would be publishable as a criminal of fence, that would be an indication that the concerned au thority is 'State '. Shah, J., who delivered a separate judgment agreeing with the conclusion reached by the majori ty, preferred to give a slightly different meaning to the expression 'other authorities '. He said that authorities, constitutional or statutory, would fail within the expres sion "other authorities" only if they are invested with the sovereign power of the State, namely, the power to make rules and regulations which have the force of law. The ratio of this decision may thus be stated to be that a constitu tional or statutory authority would be within the expression "other authorities" if it has been invested with statutory power to issue binding directions to third parties, the disobedience of which would entail penal consequences or it has the sovereign power to make rules and regulations having the force of law. This test was followed by Ray, C J, in Sukhdev vs Bhagat Ram, ; Mathew, J. however, in the same case propounded a broader test. The learned Judge emphasised that the concept of 'State ' had undergone drastic changes in recent years and today 'State ' could not be conceived of simply as a coercive machinery wielding the thunderbolt of authority; rather it has to be viewed mainly as a service corporation. He expanded on this dictum by stating that the emerging principle appears to be that a public corporation being an instrumentality or agency of the 'State ' is subject to the same constitutional limitations as the 'State ' it self. The preconditions of this are two, namely, that the corporation is the creation of the 'State ' and that there is existence of power in the corporation to invade the consti tutional rights of the individual. This Court in Ram anna Shetty vs International Airport Authority, ; accepted and adopted the rational of instrumentality or agency of State put forward by Mathew, J., and spelt out certain criteria with whose aid such an inference could be made. However, before we come to these criteria we think it necessary to refer to the concern operating behind the exposition of the broader test by Justice Mathew which is of equal relevance to us today, especially considering the fact that the definition under Article 12 is. an inclusive and not an exhaustive definition. That concern is the need to curb arbitrary and unregulated power wherever and howsoever reposed. In Ramanna D. Shetty vs International Airport Authority (supra) this Court deliberating on the criteria on the basis of which to determine whether a corporation is acting as instrumentality or agency of Government said that it was not possible to formulate an all inclu 834 sive or exhaustive test which would adequately answer this question. There is no out and dried formula which would provide the correct division of corporations into those which are instrumentalities or agencies of Government and those which are not. The Court said whilst formulating the criteria that analogical aid can be taken from the concept of State Action as developed in the United States wherein the U.S. Courts have suggested that a private agency if supported by extra ordinary assistance given by the State may be subject to the same constitutional limitations as the State. It was pointed out that the State 's general common law and statutory structure under which its people carry on their private affairs, own property and enter into con tracts, each enjoying equality in terms of legal capacity, is not such assistance as would transform private conduct into State Action. "But if extensive and unusual financial assistance is given and the purpose of such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is of public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of the Government". On the question of State control, the Court in R.D. Shetty 's case (supra) clarified that some control by the State would not be determinative of the question, since the State has considerable measure of control under its police power over all types of business organisations. But a find ing of State financial support plus an unusual degree of control over the management and policies of the corporation might lead to the characterisation of the operation as State Action. Whilst deliberating on the functional criteria namely, that the corporation is carrying out a governmental func tion. the Court emphasised that classification of a function as governmental should not be done on earlier day percep tions but on what the State today views as an indispensable part of its activities, for the State may deem it as essen tial to its economy that it owns and operate a railroad, a mill or an irrigation system as it does to own and operate bridges street lights or a sewage disposal plant. The Court also reiterated in R.D. Shetty 's case (supra) what was pointed out by Mathew, J. in Sukhdev vs Bhagatram that "Institutions engaged in matters of high public interest or public functions are by virtue of the nature of the func tions performed government agencies. Activities which are too fundamental to the society are by definition too impor tant not to be considered government functions. " The above discussion was rounded off by the Court in R.D. 835 Shetty 's case (supra) by enumerating the following five factors namely, (1) financial assistance given by the State and magnitude of such assistance (2) any other form of assistance whether of the usual kind or extraordinary (3) control of management and policies of the corporation by the State nature and extent of control (4) State conferred or State protected monopoly status and (5) functions carried out by the corporation, whether public functions closely related to governmental functions, as relevant criteria for determining whether a corporation is an instrumentality or agency of the State or not, though the Court took care to point out that the enumeration was not exhaustive and that it was the aggregate or cumulative effect of all the rele vant factors that must be taken as controlling. The criteria evolved by this Court in Ramanna Shetty 's case (supra) were applied by this Court in Ajay Hasia vs Khalid Mujib; , where it was further empha sised that: "Where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool for constitu tional law must seek the substance and not the form. Now it is obvious that the Government may through the instrumental ity or agency of natural persons or it may employ the in strumentality or agency of judicial persons to carry out its functions. It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government . . (for if the Government acting through its officers is subject to certain constitu tional limitations it must follow a fortiorari that the Government acting through the instrumentality or agency of a corporation should be equality subject to the same limita tions". On the canon of construction to be adopted for interpreting constitutional guarantees the Court pointed out: ". constitutional guarantees . should not be allowed to be emasculated in their application by a narrow and con structed judicial interpretation. The Courts should be anxious to enlarge the scope and width of the fundamental 836 rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activi ties, whether through natural persons or through corporate entities to the basic obligation of the fundamental rights. " In this case the Court also set at rest the controversy as to whether the manner in which a corporation is brought into existence had any relevance to the question whether it is a State instrumentality or agency. The Court said that it is immaterial for the purpose of determining whether a corpora tion is an instrumentality or agency of the State or not whether it is created by a Statute or under a statute: "the inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by statute or it may be a Government company or a company formed under the Compa nies Act, 1956 or it may be a society registered under the or any other similar stat ute". It would come within the ambit of Article 12, if it is found to an instrumentality or agency of the State on a proper assessment of the relevant factors. It will thus be seen that this Court has not permitted the corporate device to be utilised as a barrier ousting the constitutional control of the fundamental rights. Rather the Court has held: "It is dangerous to exonerate corporations from the need to have constitutional conscience, and so that inter pretation, language permitting, which makes governmental agencies whatever their main amenable to constitutional limitations must be adopted by the court as against the alternative of permitting them to flourish as an imperium in imperio". Som Prakash vs Union of India, ; Taking the above exposition as our guideline, we must now proceed to examine whether a private corporation such as Shriram comes within the ambit of Article 12 so as to be amenable to the discipline of Article 21. In order to assess the functional role allocated to private corporation engaged in the manufacture of chemicals and fertilisers we need 837 to examine the Industrial Policy of the Government and see the public interest importance given by the State to the activity carried on by such private corporation. Under the Industrial Policy Resolution 1956 industries were classified into three categories having regard to the part which the State would play in each of them. The first category was to be the exclusive responsibility of the State. The second category comprised those industries which would be progressively State owned and in which the State would therefore generally take the initiative in establish ing new undertakings but in which private enterprise would also be expected to supplement the effort of the State by promoting and development undertakings either on its own or with State participation. The third category would include all the remaining industries and their future development would generally be left to the initiative and enterprise of the private sector. Schedule B to the Resolution enumerated the industries. Appendix I to the Industrial Policy Resolution, 1948 dealing with the problem of State participation in industry and the conditions in which private enterprise should be allowed to operate stated that there can be no doubt that the State must play a progressively active role in the development of industries. However under the present condi tions, the mechanism and resources of the State may not permit it to function forthwith in Industry as widely as may be desirable. The Policy declared that for some time to come, the State could contribute more quickly to the in crease of national wealth by expanding its present activi ties wherever it is already operating and by concentrating on new units of production in other fields. On these considerations the Government decided that the manufacture of arms and ammunition, the production and control of atomic energy and the ownership and management of railway transport would be the exclusive monopoly of the Central Government. The establishment of new undertakings in Coal, Iron and Steel, Aircraft manufacture, Ship building, manufacture of telephone telegraph and wireless apparatus and mineral oil were to be the exclusive responsibility of the State except where in national interest the State itself finds it necessary to secure the co operation of private enterprise subject to control of the Central Government. The policy resolution also made mention of certain basic industries of importance the planning and regulation of which by tile Cent 838 ral Government was found necessary in national interest. Among the eighteen industries so mentioned as requiring such Central control. heavy chemicals and fertilisers stood included. In order to carry out the objective of the Policy Reso lution the Industries (Development and Regulation) Act of 1951 was enacted which, according to its objects and rea sons, brought under central control the development and regulation of a number of important industries the activi ties of which affect the country as a whole and the develop ment of which must be governed by economic factors of all India import. Section 2 of the Act declares that it is expedient in the public interest that the Union should take under its control the industries specified in the First Schedule. Chemicals and Fertilisers find a place in the First Schedule as Items 19 and 18 respectively. If an analysis of the declarations in the Policy Resolu tions and the Act is undertaken, we find that the activity of producing chemicals and fertilisers is deemed by the State to be an industry of vital public interest, whose public import necessitates that the activity should be ultimately carried out by the State itself, in the interim period with State support and under State control, private corporations may also be permitted to supplement the State effort. The argument of the applicants on the basis of this premise was that in view of this declared industrial policy of the State, even private corporations manufacturing chemi cals and fertilisers can be said to be engaged in activities which are so fundamental to the Society as to be necessarily considered government functions. Sukhdev vs Bhagat Ram, Ramanna Shetty and Ajay Hasia (supra). It was pointed out on behalf of the applicants that as Shriram is registered under the InduStries Development and Regulation Act 1951, its activities are subject to extensive and detailed control and supervision by the Government. Under the Act a licence is necessary for the establishment of a new industrial undertaking or expansion of capacity or manufacture of a new article by an existing industrial undertaking carrying on any of the Scheduled Industries included in the First Schedule of the Act. By refusing licence for a particular unit, the Government can prevent over concentration in a particular region or over investment in a particular industry. Moreover, by its power to specify the capacity in the licence it can also prevent over devel opment of a particular industry if it has already reached target capacity. Section 18 G of the Act empowers the Gov ernment to control the supply, distribution, price etc. of the articles manufactured by a scheduled 839 industry and under Section 18A Government can assume manage ment and control of an industrial undertaking engaged in a scheduled industry if after investigation it is found that the affairs of the undertaking are being managed in a manner detrimental to public interest and under Section 18AA in certain emergent cases, take over is allowed even without investigation. Since Shriram is carrying on a scheduled industry, it is subject to this stringent system of regis tration and licensing. It is also amenable. to various directions that may be issued by the Government from time to time and it is subject to the exercise of the powers of the Government under Sections 18A, and 18G. Shriram is required to obtain a licence under the Facto ries Act and is subject to the directions and orders of the authorities under the Act. It is also required to obtain a licence for its manufacturing activities from the Municipal authorities under the Delhi Municipal Act, 1957. It is subject to extensive environment regulation under the and as the factory is situated in an air pollution control area, it is also subject to the regulation of the Air (Prevention and Control of Pollution) Act, 1981. It is true that control is not exercised by the Government in relation to the internal management policies of the Company. However, the control is exercised on all such activities of Shriram which can jeop ardize public interest. This functional control is of spe cial significance as it is the potentiality of the fertiliz er industry to adversely affect the health and safety of the community and its being impregnated with public interest which perhaps dictated the policy decision of the Government to ultimately operate this industry exclusively and invited functional control. Along with this extensive functional control, we find that Shriram also receives sizable assist ance in the shape of loans and overdrafts running into several crores of rupees from the Government through various agencies. Moreover, Shriram is engaged in the manufacture of caustic soda, chlorine etc. Its various units are set up in a single complex surrounded by thickly populated colonies. Chlorine gas is admittedly dangerous to life and ' health. If the gas escapes either from the storage tank or from the filled cylinders or from any other point in the course of production, the health and wellbeing of the people living in the vicinity can be seriously affected. Thus Shriram is engaged in an activity which has the potential to invade the right to life of large sections of people. The question is whether these factors are cumulatively sufficient to bring Shriram within the ambit of Article 12. Prima facie it is arguable that when the States ' power as economic agent, economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights. (Vide 840 Eurasian Equipment and Chemicals Ltd. vs State of West Bengal, ; , Rashbehari Panda vs State, , Ramanna Shetty vs International Airport Authori ty, (supra) and Kasturilal Reddy vs State of Jammu & Kash mir; , why should a private corporation under the functional control of the State engaged in an activity which is hazardous to the health and safety of the community and is imbued with public interest and which the State ultimately proposes to exclusively run under its industrial policy, not be subject to the same limitations. But we do not propose to decide this question and make any definite pronouncement upon it for reasons which we shall point out later in the course of this judgment. We were during the course of arguments, addressed at great length by counsel on both sides on the American doc trine of State action. The learned counsel elaborately traced the evolution of this doctrine in its parent country. We are aware that in America since the Fourteenth Amendment is available only against the State, the Courts, in order to thwart racial discrimination by private parties, devised the theory of State action under which it was held that wherever private activity was aided, facilitated or supported by the Slate in a significant measure, such activity took the colour of State action and was subject to the constitutional limitations of the Fourteenth Amendment. This historical context in which the doctrine of State action evolved in the United States is irrelevant for our purpose especially since we have Article 15(2) in our Constitution. But it is the principle behind the doctrine of State aid, control and regulation so impregnating a private activity as to give it the colour of State action that is of interest to us and that also to the limited extent to which it can be Indian ized and harmoniously blended with our constitutional juris prudence. That we in no way consider ourselves bound by American exposition of constitutional law is well demos trated by the fact that in Ramanna Shetty, (supra) this Court preferred the minority opinion of Douglas, J. in Jackson vs Metropolitan Edison Company, ; as against the majority opinion of Rehnquist, J. And again in Air India vs Nargesh Mirza, ; this Court whilst preferring the minority view in General Electric Company Martha vs Gilbert, ; said that the provisions of the American Constitution cannot always be applied to Indian conditions or to the provisions of our Constitution and whilst some of the principles adumbrated by the American decisions may provide a useful guide, close adherence to those principles while applying them to the provisions of our Constitution is not to be favoured, be cause the social conditions in our country are different. The learned counsel for Shriram stressed the inapposite 841 ness of the doctrine of State action in the Indian context because, according to him, once an authority is brought within the purview of Article 12, it is State for all in tents and purposes and the functional dichotomy in America where certain activities of the same authority may be cha raterised as State action and others as private action cannot be applied here in India. But so far as this argument is concerned, we must demur to it and point out that it is not correct to say that in India once a corporation is deemed to be 'authority ', it would be subject to the consti tutional limitation of fundamental rights in the performance of all its functions and that the appellation of 'authority ' would stick to such corporation, irrespective of the func tional context. Before we part with this topic, we may point out that this Court has throughout the last few years expanded the horizon of Article 12 primarily to inject respect for human rights and social conscience in our corporate struc ture. The purpose of expansion has not been to destroy the raison d 'eter of creating corporations but to advance the human rights jurisprudence. Prima facie we are not inclined to accept the apprehensions of learned counsel for Shriram as well founded when he says that our including within the ambit of Article 12 and thus subjecting to the discipline of Article 21, those private corporations whose activities have the potential of affecting the life and health of the peo ple, would deal a death blow to the policy of encouraging and permitting private entrepreneurial activity. Whenever a new advance is made in the field of human rights, apprehen sion is always expressed by the status quosits that it will create enormous difficulties in the way of smooth function ing of the system and affect its stability. Similar appre hension was voiced when this Court In Ramanna Shetty 's case (supra) brought public sector corporations within the scope and ambit of Article 12 and subjected them to the discipline of fundamental rights. Such apprehension expressed by those who may be affected by any new and innovative expansion of human rights need not deter the Court from widening the scope of human rights and expanding their reach ambit, if otherwise it is possible to do so without doing violence to the language of the constitutional provision. It is through creative interpretation and bold innovation that the human rights jurisprudence has been developed in our country to a remarkable extent and this forward march of the human rights movement cannot be allowed to be halted by unfounded appre hensions expressed by status quoists. But we do not propose to decide finally at the present stage whether a private corporation like Shriram would fall within the scope and ambit of Article 12, because we have not had sufficient time to consider and reflect on this question in depth The hearing of this case before us 842 concluded only on 15th December 1986 and we are called upon to deliver our judgment within a period of four days, on 19th December 1986. We are therefore of the view that this is not a question on which we must make any definite pro nouncement at this stage. But we would leave it for a proper and detailed consideration at a later stage if it becomes necessary to do so. We must also deal with one other question which was seriously debated before us and that question is as to what is the measure of liability of an enterprise which is en gaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. Does the rule in Rylands vs Fletcher apply or is there any other principle on which the liability can be determined? The rule in Rylands vs Fletcher was evolved in the year 1866 and it provides that a person who for his own purposes being on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he falls to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing escaped without that person 's wilful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. Of course, this rule applies only to non natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. Vide Halsbury Laws of England, Vol. 45 para 1305. Considerable case law has developed in England as to what is natural and what is non natural use of land and what are precisely the circumstances in which this rule may be displaced. But it is not necessary for us to consider these decisions laying down the parameters of this rule because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous indus tries are necessary to carry out part of the developmental programme. This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of 843 economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the chal lenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms Which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence and we cannot countenance an argument that merely because the new law does not recog nise the rule of strict and absolute liability in cases of hazardous or dangerous liability or the rule as laid down in Rylands vs Fletcher as is developed in England recognises certain limitations and responsibilities. We in India cannot hold our hands back and I venture to evolve a new. principle of liability which English courts have not done. We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dan gerous industries which are concommitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England. We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and nondelegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous prepara tion of substance or any other related element that caused the harm must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or 844 inherently dangerous activity. If the enterprise is permit ted to carry on an hazardous or inherently dangerous activi ty for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its over heads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enter prise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activ ity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an acci dent in the operation of such hazardous or inherently dan gerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis a vis the tortious principle of strict liability under the rule in Rylands vs Fletcher (supra). We would also like to point out that the measure of compensation in the kind of cases referred to in the preced ing paragraph must be co related to the magnitude and capac ity of the enterprise because such compensation must have a deferent effect. The larger and more prosperous the enter prise, the greater must be the amount of compensation pay able by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise. Since we are not deciding the question as to whether Shriram is an authority within the meaning of Article 12 so as to be subjected to the discipline of the fundamental right under Article 21, we do not think it would be justi fied in setting up a special machinery for investigation of the claims for compensation made by those who allege that they have been the victims of oleum gas escape. But we would direct that Delhi Legal Aid and Advice Board to take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the appro priate court for claiming compensation against Shriram. Such actions claiming compensation may be filed by the Delhi Legal Aid and Advice Board.within two months from 845 today and the Delhi Administration is directed to provide the necessary funds to the Delhi Legal Aid and Advice Board for the purpose of filing and prosecuting such actions. The High Court will nominate one or more Judges as may be neces sary for the purpose of trying such actions so that they may be expeditiously disposed of. So far as the issue of reloca tion and other issues are concerned the writ petition will come up for hearing on 3rd February, 1987. A.P.J. Petition dis posed of.

The petitioners, in this writ petition under article 32, sought a direction for closure of the various units of Shriram Foods & Fertilizers 820 Industries on the ground that they were hazardous to the community. During the pendency of the petition, there was escape of oleum gas from one of the units of Shriram. The Delhi Legal Aid and Advice Board and the Delhi Bar Associa tion filed applications for award of compensation to the persons who had suffered harm on account of escape of oleum gas. A Bench of three Hon 'ble Judges while permitting Shriram to restart its power plant as also other plants subject to certain conditions, referred the applications for compensa tion to a larger Bench of five Judges because issues of great constitutional importance were involved, namely, (1) What is the scope and ambit of the jurisdiction of the Supreme Court under article 32 since the applications for compensation are sought to be maintained under that Article; (2) Whether article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people; and (3) What is the measure of liabil ity of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. Does the rule in Rylands vs Fletcher, (1866 Law Report 1 Excheq uer 265) apply or is there any other principle on which the liability can be determined. Disposing of the applications, HELD: 1. The question whether a private corporation like Shriram would fall within the scope and ambit of article 12 so as to be amenable to the discipline of article 21 is left for proper and detailed consideration at a later stage if it becomes necessary to do so. [844F G] Rajasthan Electricity Board vs Mohan Lal, ; ; Sukhdev vs Bhagwat Ram, ; ; Ramanna Shetty vs International Airport Authority, ; ; Ajay Hasia vs Khalid Mujib, ; ; Som Prakash vs Union of India, ; ; Appendix I to Industrial Policy Resolution, 1948; Industries (Develop ment and Regulation) Act, 1951; Delhi Municipal Act, 1957 ; Air (Prevention and Control of Pollution) Act, 1981; Eurasian Equipment and Chemicals Ltd. vs State of West Bengal, ; ; Rasbehari Panda vs St.ate, ; ; Kas turi Lal Reddy vs State of Jammu & Kashmir, ; , referred to. 821 2. The Delhi Legal Aid and Advice Board is directed to take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the appropriate Court for claiming compensation and the Delhi Administration is directed to provide necessary funds to the Board for the purpose. [844G H; 845A] 3.(i) Where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a Court of law for justice, it would be open to any public spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing regular writ petition under article 226 in the High Court and under article 32 in this Court, but also by addressing a letter to the Court. [828B C; E F] 3.(ii) Even if a letter is addressed to an individual Judge of the Court, it should be entertained, provided of course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class or deprived or disadvantaged persons. [829B C] 3.(iii) Letters addressed to individual Justices of this Court should not be rejected merely because they fail to conform to the preferred form of address nor should the Court adopt a rigid stance that no letters will be enter tained unless they are supported by an affidavit. If the Court were to insist on an affidavit as a condition of entertaining the letters the entire object and purpose of epistolary jurisdiction would be frustrated because most of the poor and disadvantaged persons will then not be able to have easy access to the Court and even the social action groups will find it difficult to approach the Court. [828H; 829B] Bandhua Mukti Morcha vs Union of India & Ors., ; ; S.P. Gupta vs Union of India, [1981] (Suppl) SCC 87 and Union for Democratic Rights & Ors. vs Union of India, [1983] 1 SCR 456, relied upon. 4.(i) Article 32 does not merely confer power on this Court to issue direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all inci dental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitu tional obligation that this Court 822 has, in the past, innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disad vantaged who are denied their basic human rights and to whom freedom and liberty have no meaning. [827F 828A] 4.(ii) The power of the Court is not only injunctive in ambit, that is, preventing the infringement of fundamental right but it is also remedial in scope and provides relief against a breach of the fundamental right already committed. [830A B] 4.(iii) The power of the Court to grant such remedial relief may include the power to award compensation in appro priate cases. The infringement of the fundamental right must be gross and patent, that is incontrovertible and exfacie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons or it should appear unjust or unduly harsh or op pressing on account of their poverty or disability or so cially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the Civil Courts. [830D; E F] 4. (iv) Ordinarily a petition under article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of Civil Court. It is only in exceptional cases that compensation may be awarded in a petition under article 32. [830F G] 4.(v) The applications for compensation in the instant writ petition are for enforcement of the fundamental right to life enshrined in article 21 of the Constitution and while dealing with such applications the Court cannot adopt a hyper technical approach which would defeat the ends of justice. The Court must look at the substance and not the form. Therefore, the instant applications for compensation are maintainable under article 32. [827A B] Bandhua Mukti Morcha vs Union of India & Ors. , ; ; S.P. Gupta vs Union of India, [1981] (Suppl.) SCR 87; Union for Democratic Rights & Ors. vs Union of India, [1983] 1 SCR 456 and Rudul Shah vs State of Bihar, AIR 1983 SC 1086, relied upon. The rule in Rylands vs Fletcher (supra) laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does 823 damage to another, he is liable to compensate for the damage caused. This rule applies only to non natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory author ity. This rule evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. In a modern industrial society with highly de veloped scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry on as part of developmental programme, the Court need not feel inhibited by this rule merely because the new law does not recognise the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activi ty. [842D G] Halsburry Laws of England, Vol. 45 Para 1305, relied upon. 6.(i) Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. Law cannot afford to remain static. The Court cannot allow judicial thinking to be constricted by reference to the law as it prevails in England or in any other foreign country. Although this Court should be prepared to receive light from whatever source it comes, but it has to build up its own jurisprudence, evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly indus trialised economy. If it is found that it is necessary to construct a new principle of law to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concommitant to an industrial economy the Court should not hesitate to evolve such principles of liability merely because it has not been so done in England. [843A E] 6(ii) This Court has throughout the last few years expanded the horizon of article 12 primarily to inject respect for human rights and social conscience in corporate struc ture. The purpose of expansion has not been to destroy the raison d 'etre of creating corporations but to advance the human rights jurisprudence. The apprehension that including within the ambit of article 12 and thus subjecting to the discipline of article 21 those private corporations whose activities have the potential of affecting the life and health of the people, would deal a death blow to 824 the policy of encouraging and permitting private enterpre neurial activity is not well founded. It is through creative interpretation and bold innovation that the human rights jurisprudence has been developed in India to a remarkable extent and this forward march of the humanrights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists. [841C E] 7.(i) An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an abso lute non delegable duty to the community to ensure that if any harm results to anyone, the enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity must be conducted with the highest standards of safety and if any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harm irrespective of the fact that the enterprise had taken all reasonable care and that the harm occurred without any negligence on its part. [843E G] 7.(ii) If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its overheads. The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. [844A B] 7.(iii) The measure of compensation in such kind of cases must be co related to the magnitude and capacity of the enterprise because such compensation must have a deter rent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in carrying on of the hazardous or inherently dangerous activity by the enterprise. [844E F] 8. The historical context in which the American doctrine of State action evolved in the united States is irrelevant for the purpose of Indian Courts, especially in view of article 15(2) of the Indian Constitution. But, it is the principle behind the doctrine of State aid, control and regulation so impregnating a private activity as to give it the colour of State action which can be applied to the limited extent to which it can be Indianised and harmoniously blended with Indian constitutional 825 jurisprudence. Indian Courts are not bound by the American exposition of constitutional law. The provisions of American Constitution cannot always be applied to Indian conditions or to the provisions of Indian Constitution and whilst some of the principles adumberated by the American decisions may provide a useful guide, close adherence to those principles while applying them to the provisions of the Indian Consti tution is not to be favoured, because the social conditions in India are different. [840D H] Ramanna Shetty vs International Airport Authority, ; ; Jackson vs Metropolitan Edison Co., ; ; Air India vs Nargesh Mirza, ; and General Electric Co. Maratha vs Gilbert, ; , relied upon.

ivil Appeal No. 3006 of 1981. From the Judgment and Order dated 28.7.1981 of the Himachal Pradesh High Court in C.W.P. No. 94 of 1981. M.V. Goswami for the Appellant. Nemo for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. "Nautor land" under Rule 3 of the Himachal Pradesh Nautor Land Rules, 1968 (hereinafter called 'Rules ') means the right to utilize with the sanction of the competent authority, waste land owned by the Government outside the towns, outside the reserved and demarcated protected forests, and outside such other areas as may be notified from time to time by the State Government. Gopinder Singh applied for the grant of nautor land measuring 14 bighas 12 biswas situated in village Kanal for cultivation. The Revenue Assistant Chopal vide his order dated June 29, 1972 sanctioned nautor land measuring 11 bighas 1 biswas situated in village Kanal to him on payment of Rs.552.50 as Nazarana. The Forest Department filed an appeal against the said order before the Deputy Commissioner Simla which was accepted and the order of the Revenue As sistant Chopal sanctioning nautor land in favour of Gopinder Singh was set aside. Gopinder Singh filed further appeal to Divisional Com missioner, Himachal Pradesh at Simla who accepted the same and vide his order dated September 9, 1974 restored the grant of nautor land to Gopinder Singh. The Forest Depart ment filed revision petition before the Financial Commis sioner (Revenue Appeals) Himachal Pradesh who accepted the revision petition and set aside the order dated September 9, 1974 of the Divisional Commissioner sanctioning nautor land to Gopinder Singh. He further ordered that the amount of Nazarana Should. be refunded to Gopinder Singh and the land resumed to the State. The Financial Commissioner accepted the appeal on the following two grounds: 799 (1) Gopinder Singh felled the trees on the land without waiting for necessary approval of the Divisional Forest Officer and as such he took the law in his own hands. (2) Being a teacher in a Government school drawing month ly emoluments of more than Rs.650 p.m. his economic condi tion was reasonably good and as such he was not eligible for the grant of nautor land under the Rules. Against the order of the Financial Commissioner Gopinder Singh filed Civil Writ Petition under Article 226 of the Constitution of India before the High Court of Himachal Pradesh at Simla which was dismissed in limine on July 28, 1981. This appeal by special leave is by appellant Gopinder Singh against the orders of the Financial Commissioner and of the High Court. Rule 7 of the Rules lays down the categories of persons eligible for the grant of nautor land. The said rule is as under: "Eligibility for nautor land. Save for the widow and the children of a member of an armed force or semi armed force, who has laid down his life for the country (whose widow and children will be eligible for grant anywhere within the Tehsil subject to the conditions mentioned in the Wajib ul arj in respect of the areas where the land applied for is situated) no one who is not the resident in the estate in which the land applied for is situate, shall be eligible for the grant. Every resident of the estate in which the land applied for lies will be eligible in the following order of preference: (a) Such persons who have less than ten bighas of land, whether as owners, or as tenants, or as lessees, either individually or collectively, or have an income of less than Rs.2,000 per annum from all sources including lands. Provid ed that in this category a dependent of one who has laid down his life for the defence of the country shall get preference over his counterparts; (b) Scheduled Castes and Scheduled Tribes applicants; (c) The dependants of those who have laid down their lives for the defence of the country. Service for the defence of 800 the country will mean service in a uniformed force as well as in the capacity of civilian, so long as the death occurs on a front, be it military or civil; (d) Serving personnel in the armed forces and Ex servicemen; (e) Panchayats, and (f) others; Provided that a bona fide landless resident of Spite shall be eligible for the grant of land in Nautor within the spiti Sub Division. " The learned counsel appearing for the appellant has relied on first part of clause (a) of Rule 7 to show that the appellant was having less than 10 bighas of land and as such as was eligible for the grant of nautor land. He fur ther contended that even though he may be having an income of more than Rs.2,000 per annum as a teacher, he being eligible under the first part, the second part of clause (a) of Rule 7 is not attracted in his case. According to him first and the second part of clause (a) of Rule 7 are inde pendent to each other and there being 'or ' in between the two parts these have to be read disjunctively. He contends that 'or ' has to be given its ordinary meaning and it cannot be read as 'and '. We have carefully examined the provisions of clause (a) of Rule 7 reproduced above. The clause reads "such persons who have less than 10 bighas of land . or have an income of less than 2,000 per annum from all sources including lands. " There is thus inherent evidence in the clause itself to show that the two parts cannot be read disjunctively. The second part makes it clear that an income of less than Rs.2,000 per annum should be from all sources including lands. It is thus obvious that a person who has got less than 10 bighas of land but has an income of more than Rs.2,000 from the said land, is not eligible for allotment of nautor land under clause (a). Even otherwise if we inter pret the clause the way learned counsel for the appellant wants us to do it would produce absurd result. A person have two bighas of land but otherwise earning Rs.20,000 per annum would be eligible for allotment of nautor land if we accept the appellant 's interpretation. The object of granting nautor land under the rules is to help poor and unprovided for residents of Himachal Pradesh. Considering the nature, scope and the clear intention of the framers of the Rules it is 801 necessary to read the word "or" in between the first and the second part of clause (a) as "and". The appellant 's income was admittedly more than Rs.2,000 per annum and as such his claim for nautor land was rightly rejected. We, therefore, do not agree with the contentions raised by the learned counsel for the appellant. The appeal is, therefore, dismissed with no order as to costs. P.S.S. Appeal dis missed.

Clause (a) of Rule 7 of the Himachal Pradesh Nautor Land Rules, 1968 makes every resident of the estate having less than ten bighas of land or having an income of less than Rs.2,000 per annum from all sources including lands, eligi ble for grant of land in nautor. The grant of nautor land to the appellant teacher was set aside by the Financial Commissioner in revision. The High Court dismissed the writ petition in limine. In the appeal by special leave it was contended for the appellant that the word 'or ' occurring in between the first and the second part of cl. (a) of Rule 7 has to be given its ordinary meaning and it cannot be read as 'and ' that the two parts of the clause were, therefore, independent of each other and had to be read disjunctively, and that he being eligible under the first part, even though having an income of more than Rs.2,000 per annum as a teacher, the second part of cl. (a) was not attracted. Dismissing the appeal, the Court, HELD: 1. A person who has got less than 10 bighas of land but has an income of more than Rs.2,000 per annum from all sources including the said land is not eligible for allotment of nautor land under cl. (a) of Rule 7 of the Himachal Pradesh Nautor Land Rules, 1968. [800G] 2. The object of granting nautor land under the Rules is to help poor and unprovided for residents of the State. Considering the nature, scope and the clear intention of the framers of the Rules it is necessary to read the word 'or ' in between the first and the second part of clause (a) as 'and '. The two parts cannot, therefore, be read disjunctive ly. The second part makes it clear that an income of less than Rs.2,000 per annum should be from all sources including lands. [800H; 801A] 798 3. The appellant 's income in the instant case being more than Rs.2,000 per annum he was not entitled to the grant of nautor land. [801A]

ivil Appeals Nos. 1270 & 1317 1319 of 1970. From the Judgment and Order dated 5 2 1970 of the Punjab and Haryana High Court in L. P. A. Nos. 96 99 of 1966. Kapil Sibal, J. B. Dadachanji and Shri Narain for the Appellant. section Manchanda, Mrs. Shobha Dikshit and Mrs. Urmila Kapoor for the Respondents. The Judgment of the Court was delivered by FAZAL ALI, J. These appeals by certificate are directed against a Common judgment dated February 5, 1970 of the Punjab and Haryana High Court by which a Letters Patent Appeal against a decision of the Single Judge was dismissed. The facts of the case lie within a narrow compass and all the appeals involve a short point of law relating to the interpretation of s.9 of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the 'Act '). The history of the case has been detailed in the judgment of the High Court and it is not necessary for us to repeat the same. Shorn of unnecessary details the appeals arose out of applications made by Pera Ram. Ganga Ram, Bhago and Kalu Ram who were the tenants of agricultural land owned by Mrs. Raj Kanta, the appellant in these appeals. The tenants made separate applications under section 18 of the Act on September 4, 1961 for purchasing the land held by them from Mrs. Raj Kanta (hereinafter called the 'land owner '). These applications were allowed by the Assistant Collector on October 31, 1961. Accordingly, the tenants deposited the 1009 first instalment in November 1961. Ultimately, however, the tenants did not pay the rent of the respective holdings for Kharif 1961. It is common ground that the last date by which the rent for Kharif 1961 was payable by the tenants to the land owner was January 15, 1962 and that the tenant did not pay the rent and did not show sufficient cause for the same. In view of the default, the land owner filed separate applications under s.9(1) (ii) of the Act on the ground that as the tenants had failed to pay the rent regularly without sufficient cause, they were entitled to be ejected by the land owner. The applications for ejectment were, however, dismissed but on appeal the Collector allowed the appeals by his order dated May 31, 1962. Second appeals preferred by the tenants in the ejectment proceedings were dismissed by an order dated 5.11.62 of the Commissioner and ultimately upheld by the Financial Commissioner by his Order dated December 21, 1962. Having failed before the Revenue courts, the tenants respondents filed a writ petition in the High Court which was heard by a Single Judge. But in the case of Kalu Ram the Financial Commissioner allowed the petition and rejected the prayer for his ejectment by the land owner as a result of which the land owner filed a writ petition in the High Court. All the petitions were consolidated and heard together, by the single Judge who allowed the writ petition of the tenants and quashed the order of the Financial Commissioner directing ejectment of the tenants. The writ petition of the land owner against Kalu Ram was, however, dismissed. Hence, the four appeals by the land owner appellant in this Court. The only point that has been canvassed before us is as to whether or not the High Court was right in interpreting s.9 of the Act by holding that the term 'regularly ' used in s.9(1) (ii) would not include a single default. While the Revenue courts had held that the mere fact that the tenants made a single default in payment for the rent for Kharif 1961 was sufficient to attract the penalty of ejectment envisaged by section 9(1) (ii) of the Act, the High Court took the view that on a proper interpretation of the term 'regularly ' it will appear that the legislature did not contemplate that ejectment should be ordered straightaway even if a single default, though unexplained, is committed by the tenant which interpretation would run against the avowed object of the legislation which was to advance and ameliorate the lot of the tenants. The High Court had considered the matter at very great length and placed a very wide interpretation on the term 'regularly ' so as not to include within its ambit one single default. It has also referred to a number of authorities and Dictionaries to 1010 show that the word 'regularly ' does not mean absolute symmetry. Having gone through the reasons given by the High Court we are unable to agree with the view taken either by the single Judge or the Division Bench of the High Court. There can be no doubt that the Act is a piece of social legislation meant to ameliorate the lot of the tenants and to further the rights of the tenants by conferring on them the status of a permanent tenancy or the rights to purchase the land on payment of instalments. At the same time, we cannot overlook the fact that the landlords within a very limited sphere have been assured protection in respect of the rights which they possess in the land and have been given the right to eject the tenants on specified grounds which are contained in the various sub clauses of section 9 of the Act. One such sub clause is sub clause (ii) which falls for interpretation in the instant case. Section 9(1) as also clauses (i) and (ii) may be extracted thus: "9. Liability of tenant to be ejected: 1. Notwithstanding anything contained in any other law for the time being in force, no land owner shall be competent to eject a tenant except when such tenant (i) is a tenant on the area reserved under this Act or is a tenant of a small land owner; (or) (ii) fails to pay rent regularly without sufficient cause; . " While interpreting the word 'regularly ' the High Court seems to have overlooked two important circumstances. In the first place, the word 'regularly ' has been used immediately after the phrase 'fails to pay rent ' and is followed by the words 'without sufficient cause '. Secondly, there is nothing in the section to indicate that the legislature intended to exclude one single default. The High Court attempted to supply words to the section which are not there. In doing so it has failed to consider that if once the court was to lay down a particular line of demarcation by extending the connotation of the word 'regularly ' to exclude one default, it is difficult to explain why the legislature contemplated only one default and not two or three for that matter. In order to construe the plain language of s.9(1) (ii) which admits of no ambiguity, it may be necessary to look to the object and the purposes of the Act. In the case of Bhagirath Ram Chand vs State of Punjab & Ors. a full Bench of the Punjab & Haryana High Court held that the Preamble of the Act stated that it was intended to provide for the security of land tenure and other incidental matters. It 1011 is no doubt true that the main thrust of the provisions of the Act are directed towards preventing the landlords from ejecting their tenants except on the grounds mentioned in s.9, but at the same time, it cannot be denied that the legislature undoubtedly provided some protection to the landlords by conferring on them a limited right to eject their tenants and within this limited sphere, the right was absolute and could not be curtailed by interpreting clause (ii) of section 9(1) of the Act through a process of twisting the law and doing violence to the language of the section. To begin with, the word 'regular ' is derived form the word 'regula ' which means 'rule ' and its first and legitimate signification, according to Webster, is 'conformable to a rule, or agreeable to an established rule, law, or principle, to a prescribed mode. In Words and Phrases (Vol. 36A, p.241) the word 'regular ' has been defined as 'steady or uniform in course, practice or occurrence, etc., and implies conformity to a rule, standard, or pattern '. It is further stated in the said Book that 'regular ' means steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation. The word 'regular ' means in a regular manner, methodically, in due order. Similarly, Webster 's New World Dictionary defines 'regular ' as 'consistent or habitual in action, not changing, uniform, conforming to a standard or to a generally accepted rule or mode of conduct: In the case of Arab Bank Ld. vs Ross while construing the words 'complete and regular ', Romer LJ observed as follows: "It wold accordingly follow, in my judgment, in the present case that the omission of the word "company" from the endorsement would reasonably give rise to a doubt whether in point of personality the payees and the indorsers were necessarily the same; and if so the bills cannot, as I think, be said to be "complete and regular" on their face. " The view of the Judge clearly indicates that the word 'regular ' postulates a state of symmetry, consistency and uniformity. In Hammond vs London County Council while construing the term "regularly employed", Farwell J. observed as follows: "It is of course a question of fact in each case whether a man was regularly employed or not, but in this particular case I think that the plaintiff, who was employed for the five years and paid his wages day in and day out during that period as a servant or officer of the defendants ' predecessors, was "regularly employed" during that period. " 1012 This interpretation also supports our view that the word 'regular ' means a consistent course of conduct without any break or breach. On a consideration of the authorities mentioned above, it seems to us that the legislature clearly intended to use the word 'regularly ' to mean payment of rent in a uniform and consistent manner without any breach or default. The legislature never contemplated that a single default could be condoned. This inference is fortified by the words "without sufficient cause". In other words, the legislature clearly provided that if the tenant had committed a default, whether one, two or more, the same could only be condoned if sufficient cause is shown and not otherwise. If, however, we accept the interpretation of the High Court, then the words "sufficient cause" becomes, absolutely redundant. On an overall consideration of the matter, a correct interpretation of the plain language and the words and phrases used in clause (ii) of s.9(1) of the Act seems to us that the word 'regular ' connotes a consistent course of conduct without any break or breach and the words 'regular payment of rent ' mean that the rent should be paid punctually without any default or laxity. Although the Act is heavily loaded in favour of the rights of the tenants so as to confer on them several important benefits and privileges yet as the Act is confiscatory in nature, so far as the landlord is concerned it should be strictly construed within the limited sphere inasmuch as the landlord is conferred limited grounds on which ejectment is permissible under s.9 of the Act which appears to be a safety valve for the limited rights that are left with the landlord under the Act. In order therefore to advance the object of the Act so as to assure the limited protection to the landlord, the language employed in the various clauses of section 9 has to be construed so as to give real benefit to the landlord within the limited range that the section operates. In the instant case, the words 'failure to pay rent regularly without sufficient cause ' postulate the following conditions: (1) there must be a failure on the part of the tenant to pay rent; (2) such failure must be to pay rent regularly, that is to say, the rent should be paid punctually consistently without any break or breach; (3) if there is any default ranging from one to several, the tenant has got to show sufficient cause if his case is to be taken out of the mischief of section 9(1) (ii). 1013 We might add at the risk of repetition that the use of the words `without sufficient cause ' clearly indicates that the intention of the legislature was that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he wants to get rid of the consequences of his default, he must prove sufficient cause. If, however, we construe the word `regularly ' as meaning at regular intervals so as to include a single default, then the term `without sufficient cause ' becomes absolutely redundant. For instance, even if a single default in the payment of the rent is committed by the tenant, his case could be taken out of the ambit of clause (ii) of section 9(1) without insisting on the tenant to prove sufficient cause for this single default. That would, therefore, make the words `sufficient cause ' meaningless in such cases. It is well settled that the legislature does not waste words and every word that is used by it must be presumed to have some significance. The function of the Court, says Sir Fracis Bacon, is "jus decere and not jus dare" (to interpret the law and not to make the law). The Court cannot, therefore, in order to promote its social philosophy turn and twist the plain and unambiguous language of the law so as to ascribe to it a meaning different from the one intended by the legislature. We are constrained to observe, with due respect, that this is what the High Court seems to have done in this case by adopting a puerile and pedantic process of reasoning. In these circumstances, reading the entire sentence, the cumulative effect thereof unmistakably is that the Act includes even a single default and that is why instead of using the word `default ' the word `regularly ' has been employed which is immediately followed by the words `without sufficient cause '. Moreover, we might mention that in the various Rent Acts passed in the States, ejectment is permissible in some cases where there is a single default, in other cases where there is more than one default and so on. If the legislature intended that a single default would not entitle a landlord to eject the tenant under the Act, then it would have said so expressly either by way of an explanation or otherwise in clause (ii) of section 9(1) of the Act. Finally, we cannot lose sight of the explanation used for the various clauses of section 9(1) which runs thus : "Explanation. For the purposes of clause (iii), a tenant shall be deemed to be in arrears of rent at the commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execution of decree or order, directing him to pay such arrears of rent. " While the explanation takes care to define as to when a tenant would be deemed to be in arrears and fixes a period of two months, 1014 indeed if the intention of the legislature was that a single default in payment of rent could be condoned, it should have included this incident also in the explanation. This provides, therefore, the most important intrinsic circumstance to support the interpretation which we have put on clause (ii) of s.9(1) of the Act and which invalidates the reasons given by the High Court. For the reasons given above, we are satisfied that the High Court took an erroneous view of law in interpreting clause (ii) of section 9(1) of the Act as the tenants have been proved, in this case, to have committed default in the payment of rent for Kharif 1961, they must be held to have failed to pay the rent regularly without sufficient cause as envisaged by clause (ii) and are, therefore, legally entitled to ejectment. The view taken by the High Court is legally erroneous and cannot be supported. In Civil Appeal No. 1319 of 1970, an objection was taken by the appellant that the appeal had abated as the heirs of respondent No. 1, Ganga Ram, were not brought on record. This objection has been overruled and we have allowed substitution as per our separate order dated 28th April 1980. The result is that the appeals are allowed, the judgment of the High Court is set aside and the order of the Collector directing ejectment of the tenants is restored. The writ petitions filed by tenants before the High Court stand dismissed and the one filed by the appellant against Kalu Ram stands allowed. In the circumstances of the case, there will be no order as to costs. section R. Appeals allowed.

The respondent landlady purchased shop No. 66 in the city of Jhansi in 1969 from one Brij Mohan (DW 2), occupied the first floor and allowed the appellant/tenant to occupy the ground floor in 1970 on a lease deed which recited that the building was erected in 1965. In 1975, the respondent filed the ejection suit on the basis that the building was new, that the Act did not deter eviction of new constructions put up within ten years of the suit and so a decree was inevitable. The appellant tenant resisted the claim on the plea that the building was constructed 50 years earlier. The Trial Court negatived the defence and decreed eviction and this was upheld by the High Court. Hence the appeal by special leave to this Court. Allowing the appeal and remanding the matter to the Trial Court, the Court ^ HELD : 1. In the normal course, no doubt the appeal must be dismissed as concluded by findings of fact. To avoid possible public mischief through a new class of litigation for eviction by easy resort to the "new construction," expedient, interference under Article 136 of the Constitution is necessary. [1037 A B] 2.Section 2(2) of the U.P. Act, uses the phrase "nothing in the rent control legislation shall apply to a building" during a period of ten years from the date on which its construction is completed. In other words, in regard to all buildings the Act applies save where this exemption operates. Therefore the landlord who seeks exemption must prove that exception. The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit. It is not for the tenant to prove that the building has been constructed beyond a period of ten years, but it is for the landlady to make out that the construction has been completed within ten years of the suit. This is sensible not merely because the statute expressly states so and the setting unnecessarily implies so, but also because it is the landlady who knows best when the building was completed, and not the tenant. As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the fact. [1038 C F] 3. An analysis of Explanation 1 to section 2(2) of the U.P. Act indicates: (1) Where a building has not been assessed, it is the date on which the completion was reported to, or otherwise recorded by the local authority having jurisdiction. [1038 G H] 1035 (2) Where a building has been assessed, it is the date on which the first assessment comes into effect. Provided that if the date on which the completion was reported, to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date. [1039 A B] (3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction). [1039 B C] Unfortunately, it is not possible for the purchaser respondent or the tenant appellant to give direct testimony about the time of the construction or the nature of the construction vis a vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and, if so, when exactly the completion took effect. It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, whatever might have been the original proposal in the plan submitted. It is perfectly possible that on a view of the earlier construction, vis a vis the completed new building the former may form but a small part. It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality. Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted. These records must also be available in the office of the local authority. The statute makes it clear that reliance upon the municipal records rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to be demolished. [1039 F G, 1040 D G] In the instant case (i) the Municipal assessment record produced in the Court merely states "increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment; (ii) the oral evidence is inconsequential being second hand testimony. Even the recital in the rent deed that there was a new construction in 1965 66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute; and (iii) the failure of the trial Court specifically to record when the building was completed and what was the extent of rebuilding, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal. These basic issues have failed to receive any attention from the courts below. A finding recorded on speculative basis is no finding and that is the fate of the holding. [1039 G H, 1040 A D] 1036

iminal Appeal No. 22 of 1973. Appeal by special leave from the judgment and order dated the 13th July 1972 of the High Court of Himachal Pradesh at Simla in Criminal Appeal No. 31 of 1970 and Murder Reference No. 21 of 1970. 72 4 Yogeshwar Prasa , for the appellant. H. R. Khanna and M. N. Shroff, for the respondent. The Judgment of the, Court was delivered by KHANNA, J. Kali Ram (40) was tried in the court of Sessions Judge Simla & Sirmur Districts for an offence under section 302 Indian Penal Code for causing the death of Dhianu (60) and the latter 's daughter Nanti (40). Charge was also framed against the accused under section 392 read with section 397 Indian Penal Code for having at the time of the occurrence committed robbery. The learned Sessions Judge convicted the accused under section 302 Indian Penal Code and sentenced him to death. On appeal and reference, the High Court of Himachal Pradesh affirmed the conviction and the sentence of death. The accused thereafter came up to this Court in appeal by special leave. The prosecution case is that Dhianu deceased was suffering from leprosy. This disease had resulted in partially destroying the hands and feet of Dhianu. For about a couple of months before the present occurrence. Nanti, daughter of Dhianu, had been staying with him in his house in village Amrahi. There was no other house near the house of Dhianu. Dhianu did business of money lending on the security of ornaments. The accused, it is stated, is a previous convict having been convicted in cases under sections 380, 454 and 457 Indian Penal Code in the years, 1955, 1957, 1960, 1962 and 1963. He was sentenced to undergo various terms of imprisonment in those cases. The last sentence of imprisonment undergone by the accused was from December 17, 1963 to November 7, 1967 on which day he was released from Central Jail Nahan. On August 1, 1968 the police presented a challan against the accused under section 1 10 of the Code of Criminal Procedure in the court of District Magistrate Naban. Notice under section 112 of the Code of Criminal Procedure was then issued to the. accused. It was served upon him for September 16. , 1968. As the. notice was not received back, the District Magistrate adjourned the case to October 16, 1968 and thereafter to November 6, 1968. On 13 Asuj, which corresponds to September 28, 1968, it is stated, the accused went at evening time to the shop of Parma Nand (PW 14) in village Paliara, at a distance of three or four miles from the house of Dhianu. The accused spent the night with Parma Nand. On the morning of 14 Asuj, corresponding to September 29, 1968, the accused gave Rs. 18 to Parma Nand for purchase of liquor and fish. Fish was thereafter purchased by Parma Nand. The accused and Parma Nand took liquor and fish on the evening of 14 Asuj. The accused then told Parma Nand that he had to meet Dhianu of village Amralu and that Parma Nand should serve the evening meals to him. After taking his meals, the accused left for the house of Dhianu deceased. The way to village Amrahi of Dhianu was shown to the, 725 accused by, Parma Nand. At about mid night hour on that night the accused shouted to Parma Nand from outside. the shop. Parma Nand asked the accused to come in but the latter replied that he had some work. The accused thereafter went away. Dhianu deceased had two nephews, Hira Singh (PW 1) and Mehru (PW 10), who lived in village Lohara at a distance of half a mile from, the house of Dhianu. On October 1, 1968 Mehru went to a Gharat (flour ginding place). On the way back Mehru did not see the cattle of Dhianu grazing in the field. On reaching home, Mehru told his brother Hira Singh that he had not seen Dhianu 's cattle. Hira Singh and Mehru then went to the house of Dhianu and found Dhianu and Nanti lying murdered in the courtyard of their house. The dead bodies were covered with cloth. On removing the cloth, Hira Singh and Mehru noticed injuries on the heads of Dhianu and Nanti. The bodies were in a state of decomposition. The door of the residential room was open and the goods were lying scattered. Hira Singh informed PW 31 Udey Singh, Pradhan of the Gram Panchyat about what he had seen. On the advice of the Pradhan, Hira Singh went with village chowkidar to police station Renuka, at a distance of six miles from the place of occurrence, and lodged there report PA at 1 a.m. on October 2, 1968. On the following morning ASI Mohd. Sardar (PW 49) accompanied by Hira Singh arrived at the place of occurrence. Sub Inspector Attar Singh, who was away from the police station at the time the report was,lodged at the police station, on learning of the occurrence, also reached the place of occurrence at about 9 a.m. on October 2, 1968. Sub Inspector Attar Singh prepared inquest reports PB and PC relating to the dead bodies of Dhianu and Nanti. The dead bodies were thereafter sent to Civil Hospital Renuka where post mortem examination was performed by Dr. N. C. Jain (PW 43) on October 3, 1968. The case of the prosecution further is that on November 22, 1968 at 9.15 a.m. Kedar Nath (PW 2), who was in those days a clerk in Government High School, Tikri Dasakna, went to the shop of one Mulak Raj for buying some goods. Near that shop Kedar Nath saw the accused, who was having a gun with him. The accused called Kedar Nath and asked him to write, a letter on his behalf to the Deputy Commissioner. Mulak Raj then told Kedar Nath that the accused was a dangerous man and that Kedar Nath should write the letter as desired by the accused. Kedar Nath then told the accused 'that he had to go to the school and that he would write the letter after taking the permission of the Head Master. The accused thereupon remarked that the Head Master was nobody and that the accused would shoot him. Kedar Nath was at that time carrying a notebook. At the dictation of the accused, Kedar Nath wrote a 22 page letter on behalf of the accused addressed to the Deputy Commissioner Nahan. In the course of that letter, the accused referred to the previous cases in which he had been convicted. as well as to the proceedings under section 110 of the Code of Criminal Procedure pending against him. According to the accused, he had been directed by police Sub Inspector to report twice at, the police, station. The accused, however, told the Sub Inspector that it was difficult for him to do so. The 726 accused tried to meet the Deputy Commissioner at Nahan and the Chief Minister of Himachal Pradesh at Simla but could not do so. The accused felt that as he had no money and no one would be prepared to stand surety for him, he would have to go to jail. It was also mentioned by the accused that he had murdered Dhianu and Nanti because the accused had been told that Dhianu had Rs. 30,000 to 40,000 with him. After getting letter PD written from Kedar Nath, the accused appended his signature to it. The accused further told Kedr Nath not to disclose die matter to any one and that otherwise he would kill him (Kedar Nath). The accused thereafter went to the post office and sent the letter by registered post to the Deputy Commissioner Nahan. The said letter was received in the office of the Deputy Commissioner Nahan on November 27, 1968. No action was taken on that letter. On November 28, 1968, it is alleged, the accused met Sahi Ram (PW 46). Sahi Ram is the son of the Lambardar of village Shalahan. Sahi Ram told the accused not to commit thefts. The accused then told Sabi Ram that after being released from jail, he had been involved in a case under section 1 10 of the Code of Criminal Procedure. As the accused felt that no one would stand surety for him and as he would have again to, go to jail for two or three years, he decided to commit such an offence as would bring money for his children. The accused added that he, bad learnt that Dhianu was a rich man and that the accused had committed the murder of Dhianu and his daughter. According further to the confession made by the accused to Sabi Ram, the accused was served meals by Nanti and Dhianu when he went to their house. After Dhianu and Nanti had gone to sleep, the accused got up from his bed and thought of committing theft of the goods. Feeling then began to weigh with the accused that Dhianu, who was suffering from leprosy, would die of hunger. This circumstance induced the accused to kill Dhianu. Accordingly, the accused gave blows to Dhianu with a dhangra. Nanti then got up and, on seeing the injuries of Dhianu, she became unconscious. The accused then went inside the house of Dhianu and picked up a sword. With that sword, he gave further blows an the head and neck of Dhianu. He, also gave blows with the sword to Nanti. It was further stated by the accused that be found Rs. 180 in cash and silver ware weighing about two or three kilograms. Sahi Ram then wrote letter PEEE dated November 28, 1968 to the Station House Officer of police station Renuka wherein Sahi Ram apprised the Station House Officer of the extra judicial confession made by accused to Sabi Ram, as mentioned above. Letter PEEE was received at the police station on December 2, 1968. Sub Inspector Budh Ram (PW 50) then recorded the statement of Sabi Ram. On December 20, 1968 Sub Inspector Attar Singh on receipt of information went to village Minus. On the night between December 20 21, 1968 the Sub Inspector surrounded a hotel wherein the accused was stated to be present in village Minus. The, accused was arrested early on the morning of December 21, 1968 from that hotel. A gun dhangra P9, currency notes of the value of Rs. 684 and some other articles were taken into possession from the accused. 727 The case, of the prosecution further is that silver ornaments and other articles belonging to Dhianu and Nanti deceased, as well as some ornaments which had been left with Dhianu as security: for the money lent by him were pawned by the accused to, various persons after this occurrence. Those ornaments and articles were after the arrest of the accused recovered at the instance of the accused from the persons with whom they had been pawned. After the recovery of the ornaments, Shri Malhotra magistrate on being moved by the police, mixed the recovered ornaments with sonic other ornaments. Salkoo, husband of Nanti deceased, and one Zalmu identified the recovered ornaments as those which were with the two deceased persons. The accused in his statement under section 342 of the Code of Criminal Procedure denied the various allegations made against him. It was, denied by the accused that he had stayed with Parma Nand PW at his shop and that he had gone from that shop towards the house of Dbianu. It was also denied by the accused that he had got letter PD written from Kedar Nath PW or that he had sent the same to the Deputy Commissioner. The accused further denied having made any confession to Sahi Ram. It was also denied by the accused that any ornaments had been recovered at his instance. The prosecution allegation about the recovery of dhangra from him was likewise denied by the, accused. According to the accused, Sahi Ram PW and two others were, engaged with him in doing the business of opium smuggling. Sahi Ram and one other person misappropriated goods worth Rs. 5000 whereupon there was a dispute between the accused and Sahi Ram. The accused added that he had been falsely implicated in this case at the instance of Sahi Ram. The trial court held that document PD wherein the. accused had made a confession about his having murdered Dhianu and Nanti had been voluntarily got written by the accused. it was further held that the accused had made an oral confession about his guilt to Sahi Ram PW. The prosecution allegation that the ornaments belonging to the deceased persons were found in possession of the accused and had been pawned by, him was also accepted by the trial court. It was also held by the trial court that the accused had stayed at the shop of Parma Nand in village Paliara on the day preceding the occurrence and that he had gone from that shop towards the house of the deceased. The evidence of Parma Nand that the accused had shouted to him from outside the shop at mid night hour and that he had thereafter gone away was not accepted by the trial court. On appeal and reference, the High Court upheld the finding of the trial court with regard to the confession of the accused contained in letter PD. The High Court also agreed with the trial court that the accused had made confession to Sahi Ram as contained in Sahi Ram 's letter PEEE. The, High Court further upheld the findings of the trial court regarding the stay of the accused with Parma Nand before the occurrence. The High Court agreed with the trial court that the evidence of Parma Nand regarding the shout of the accused at mid night hour from outside the shop could not be accepted. The 728 High Court, however, disagreed with the trial court regarding its findings of the possession of silver ornaments, belonging to the two deceased persons by the accused after the occurrence. As regards the recovery of dhangra, the High Court held that the same was not shown to have been recovered from the possession of the accused. In appeal before us, Mr. Yogeshwar Prasad has assailed the findings of the High Court on the basis of which the High Court arrived at the conclusion of the, guilt of the accused. It has been urged that the evidence adduced in support of those findings is innately unconvincing and it is not safe to base the conviction of the accused on a capital charge upon such evidence. As against that, Mr. Khanna on behalf of the State has supported the findings of the High Court and has urged that no case has been made for interference with those findings. It cannot be disputed that Dhianu and Nanti were the victims of a murderous assault. Dr. Jain, who performed the post mortem examination on the two dead bodies, found the following two injuries on the body of Dhianu: "Injury (1). A sharp wound injury over the left side of the skull. Injury over the scalp is running from outer angle of the left eye to the middle of the, forehead, reaching I" above the hair line. The whole socket of the left eye is ruptured, frontal bone and part of the parietal bone are completely fractured around the course of the wound. Wound is 5 1/2 broad and " above the left eye. Scalp and skull is completely separated from the line of wound due to decomposition. Whole cranial cavity is seen through the wound. Whole of brain matter and meanings have sloughed out. Eye ball is also eaten up. (2) A sharp wound over the forehead running from the bridge of the nose going towards the right frontal prominence. Wound is 4 1/2" long tapering at both the ends and I" wide in the centre of the wound. Margins are even. Bones around the Wound are completely fractured. Maggots from the wound coming and going out. The rest of the parts of the body were normal except that they were in a state as described above. " The following three injuries were found on the body of Nanti: "A sharp wound over the scalp, starting from forehead on right side 1/4 from upper margin of middle of right eye ,to, the right parietal bone on the same side Wound is ending near the middle of parietal bone. Wound is 7 1/2" long and tapering at both the ends. Wound is I" apart at the prominence of the right frontal bone. Skull underneath the wound is completely fractured. Due to this, injury, whole in= bones of right eye and bones of the bridge of nose is, completely fractured. Pieces of bones are clearly seen in the hollow of the skull. And one can nicely peep into 729 the hollow of skull by making wound apart by fingers. Margins of the wound are even. (2) A sharp cut wound of 8" size, starting from 1 1/2" above the middle of left eye having a semilunar shape, reaching to the most prominent part of the, occipital bone. Wound is tapering at both the ends, margins are even. Scalp and skull is completely apart. Skull during the course of wound is completely fractured and depressed at the places. (3) Neck injury. A deep sharp wound starting from the right angle of the mandible to the middle of the neck and reaching to I" short of laryngeal prominence, wound is 2 1/2" deep at the angle of the mandible and tapering towards the middle of neck. All underlying structures, nerves, arteries, veins are cut, laryngeal prominence is also fractured Wound is 3" long and 1/2" broad." According to Dr. Jain, the injuries on the bodies of Dhianu and Nanti had been caused with a heavy sharp weapon. The injuries were sufficient in the ordinary course of nature to cause death. The case of the prosecution is that the injuries to Dhianu and Nanti deceased were caused by the accused. The accused has, however, denied this allegation. In order to bring the charge home to, the accused, the prosecution led evidence on a number of points. The High Court accepted the prosecution allegation in this respect and. based its conclusion upon the following three pieces of evidence : (1) The evidence of Parma Nand that the accused had stayed with him on September 29, 1968 and had on the evening of that day proceeded towards the house of Dhianu deceased after he had been shown the way by Parma Nand. (2) The confession of the accused contained in letter PD. (3) The extra judicial confession made by the accused to Sahi Ram incorported in letter PEEE. We may first deal with the deposition of Parma Nand (PW 14). The deposition consists of three parts. The first part relates to the stay of the accused with Parma Nand at his shop in village Paliara on September 28 and 29, 1968 when some fish and liquor are stated to have been taken by the accused and Parma Nand. This part of the deposition relates to an innocuous circumstance and hardly connects the accused with the crime. The second part of the deposition is to the effect that the accused on the evening of September 29, 1968 told Parma Nand that he had to go to the house of Dhianu and that Parma Nand showed at the instance of the accused the way which leads to the house of Dhianu at a distance of three or four miles from the shop of Parma Nand. We find it difficult to accept this part of the deposition of Parma Nand. Parma Nand admits that he came to know of the murder of Dhianu and Nanti about four days after those persons were found to have been murdered. It would, therefore, follow that Parma Nand came to know ' of 730 the murder of Dhianu and Nanti on or about October 4, 1968. Had the accused left for the house of Dhianu deceased on the evening of September 29, and had Parma Nand PW come to know that Dhianu and Nanti were murdered in their house, this fact must have aroused the suspicion of Parma Nand regarding the complicity of the accused. Parma Nand, however, kept quiet in the matter and did not talk of it. The statement of Parma Nand was recorded by the police on December 11, 1968. If a witness professes to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness keeps silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstance, in the absence of any cogent reason, is bound to lose most of its value. No cogent reason has been shown to us as to why Parma Nand kept quiet for over two months after coming to know of the murder of Dhianu and Nanti about the fact that the accused had left for the, house of the deceased shortly before the murder. We are, therefore, not prepared to place any reliance upon the second part of the deposition of Parma Nand. The third part of the deposition of Parma Nand PW pertains to the shout of the accused from outside the shop of Parma Nand at about mid night hour on the night of occurrence. This part of the deposition has not been accepted by the trial court and the High Court and we find no valid reason to take a different view. Coming to the confession of the accused, which is alleged to be incorporated in letter PD, we find that the question which arises for consideration is whether the letter sent by the accused to the Deputy Commissioner contained confession about his having murdered Dhianu and Nanti. The fact that a registered letter purporting to be from the accused was received in the office of the Deputy Commissioner cannot be disputed. The controversy before us has, however, ranged on the point whether the letter contained any confession regarding the murder of Dhianu and Nanti by the accused or whether that portion of the letter has been subsequently inserted. In this respect we find that letter PD is on loose leaves. It is only the first leaf of the letter which bears the stamp of the office of the Deputy Commissioner, while the remaining leaves have not been stamped. In the circumstances, it was not difficult to replace or add some other leaves. According to PW Sundar Singh, who was working as postmaster at Kurag during the relevant days, the letter addressed by the accused to the Deputy Commissioner consisted of 18 or 19 pages. Letter PD produced at the trial consists of 22 pages. PW 21 Mehta, Superintendent of Deputy Commissioner 's office, has deposed that on receipt of letter PD, he read that letter. An entry was then made in the diary that letter PD related to the subject of jail dispute. Had the letter addressed by the accused to the Deputy Commissioner contained confession about a double murder committed by the accused, it is difficult to believe that the Superintendent of Deputy Commissioner 's office would have after reading the letter kept quiet and not brought it to the notice of the authorities concerned. The fact that no action was taken on the letter till it was taken into possession by the police on January 1, 731 1969 lends support to the contention that letter PD did not contain the confession. The portion of the letter relating to the confession is also somewhat incongruous with the entire tenor and context 'of the letter. The letter appears to have been sent by the accused to the Deputy Commissioner to show that after his release from jail in 1967, the accused had turned a new leaf and he wanted the Deputy Com missioner to give him help and relief so that the accused might rehabilitate himself and support his family. It is not likely that a person asking for relief would make a confession that after his release from jail, he has committed two murders. The circumstances in which the accused is stated to have got letter PD written from Kedar Nath (PW 2) are also rather peculiar. According to Kedar Nath, the accused compelled Kedar Nath at the point of gun to write that letter. The accused also told Kedar Nath not to disclose the contents of the letter to any one. It is not clear as to why the accused should ask Kedar Nath to keep the matter secret when he was himself, according to letter PD, making a confession about his having committed the crime of two murders. Apart from that, if Kedar Nath came to know on November 22, 1968 that the accused had committed the murder of Dhianu and Nanti, his failure to make any statement IQ the police till December 24, 1968 regarding the confession made by the accused to the witness would deprive his evidence of much of its value. We, therefore, find it difficult to act upon the confession incorporated in letter PD. The last piece of evidence upon which the High Court has maintained the conviction of the accused consists of the confession of the accused contained in letter PEEE sent by Sahi Ram (PW 4) to the Station House Officer Renuka. The first question which arises for consideration in respect of letter PEEE is whether it is admissible in evidence. Section 162 of the Code of Criminal Procedure reads as, under : 162. (1) No statement made by any person to a police officer in the course of. an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence, under inve stigation it the time when such statement was made : provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Section 145 of the and when any part of such statement is 732 so used, any part thereof may also be, used in the re examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32, clause (1) of the , or to affect the provisions of Section 27 of that Act." Bare perusal of the provision reproduced above makes it plain that the statement made by any person to a police officer in the course of an investigation cannot be used for any purpose except for the purpose of contradicting a witness, as mentioned in the proviso to sub section (1), or for the purposes mentioned in sub section (2) with which we are not concerned in the present case. The prohibition contained in the section relates to all statements made during the course of an investigation. Letter PEEE which was addressed by Sahi Ram to Station House Officer was in the nature of narration of what, according to Sahi Ram, he had been told by the accused. Such a letter, in our opinion, would constitute statement for the purpose of section 162 of the Code of Criminal Procedure. The prohibition relating to the use of a statement made to a police officer during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communication addressed by the person concerned to the police officer. If a statement made by a person to a police officer in the course of an investigation is inadmissible, except for the purposes mentioned in section 162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in section 162 by the investigating officer obtain a written statement of a person instead of the investigating officer himself recording that statement. It has been argued by Mr. Khanna on behalf of the State that at the time letter PEEE was addressed by Sahi Ram to the police, no investigation had been made by the police against the accused and, as such, the aforesaid letter cannot be held to be inadmissible. This contention, in our opinion, is wholly devoid of force. The restriction placed by section 162 on the use of statement made during the course ,of investigation is in general terms. There is nothing in the section to show that the investigation must relate to any particular accused before a statement to the police pertaining to that accused can be held to be inadmissible. Reference has been made by Mr. Khanna to the case of Sita Ram vs State of Uttar Pradesh( ') wherein it was held by majority that a letter addressed by the accused to a sub inspector of police containing his confession was not inadmissible under section 25 of the . There is nothing in the aforesaid judgment to show that the letter in question had been written during the course of the (1) [19661 Supp. section C. R. 265. 733 investigation of the case. As such, this Court in that cast did not consider the question as to whether the letter in question wag inadmissible under section 162 of the Code of Criminal Procedure. As such, the State cannot derive much help from that authority. We would, therefore, hold that letter PEEE is inadmissible in evidence. Although letter PEEE has been held by us to be inadmissible we would still have to deal with the oral deposition of Sahi Ram that the, accused had made a confession to him on November 28, 1968. The version of the accused in this respect is that Sahi Ram is inimical to him as he had a dispute with him because of some misappropriation committed by Sahi Ram in connection with the smuggling of opium. According to Sahi Ram, he happened to meet the accused on November 28, 1968 when the accused made a confession to him about his having committed the murder of Dhianu and Nanti. The story about the gratuitous confession made by the accused to Sahi Ram, in our opinion, hardly inspires confidence. It is not the case of the prosecution that the police was after the accused and that the accused in that connection went to Sahi Ram to seek his help and made a confession to him. Sahi Ram is the son of a village lambardar. It has been argued on behalf of the accused appellant that the police, with a view to see that the crime relating to the murder of Dhianu and Nanti might not remain untraced, utilised the services of Sahi Rain for bringing in the evidence regarding the extra judicial confession of the accused. Looking to all the circumstances we find this contention to be not devoid of all force. Mr. Khanna submits that both the trial court and the High Court have accepted the evidence of Sahi Ram and we should not interfere with the concurrent finding in this respect. We find it difficult to accede to this submission because we find that both the trial court as well as the High Court were influenced by the fact that exhibit PEEE was admissible in evidence. As letter PEEE has been held by us to be not admissible and as we find that the statement of Sahi Ram about the extra judicial confession is otherwise also lacking in credence, there should not arise any difficulty in this Court disaggreeing with the above finding of the trial court and the High Court. Mr. Khanna on behalf of the State has also tried to assail the finding of the High Court regarding the possession of silver ornaments of the two deceased persons by the accused. In our opinion, the finding of the High Court in this respect is based upon the appraisement of the evidence on record and there is no valid ground to disturb it. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr. vs State of Maharashtra( ') to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system (1) Cr. App. Ho.26 of 1970 decided on August 27, 1973 734 of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. The court may, of course, presume, as mentioned in section 114 of the , the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business. in their relation to the facts of the particular case. The illustrations mentioned in that section, though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the section itself Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and confine human behaviour within straitjackets. The raw material here is far too complex to be susceptible of precise and exact propositions for exactness here is a fake. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the 73 5 court entertains reasonable doubt regarding the, guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable : it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab vs Jagir Singh,( ') a criminal trial is not like a fairy tale wherein one is free to give flight to one 's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriv ing at the conclusion about the guilt of the accused charged with the commission of a crime, the, court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures. It needs all the same to be re emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. As observed on page 3 of the book entitled "The Accused" by J.A. Coutts 1966 Edition, "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot be proved. the public interest and the interest of the accused alike require an acquittal. " It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more (1) Cr. 7 of 1972 decided on August 6, 1973 7 3 6 serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expidation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring. as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of "The Proof of Guilt" by Glanville Williams, Second Edition: "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos. " The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahabrao Bobade & Anr. (supra) as is clear from the following observations : "Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be ' and 'must be ' is long and divides vague conjectures from sure considerations". As a result of the above, we accept the appeal, set aside the judgments of the. trial court and the High Court and acquit the accused. P.B.R. Appeal allowed.

Prior to the Hindu Seccession Act, 1956, the parties were governed by the Aliyasantana law. The customary Aliyasantana law was known by two different names, namely marumakattayam and aliyasantana which literally connotes inheritance in the line of nephews ' or sisters ' sons respectively. The basic principle underlying the joint family composition, otherwise known as kutumba or tarwad, is the matriarchal system, in which devolution is through females. A kutumba under the customary Aliyasantana law was a family corporation; every member, male or female, born in it has equal rights in the property owned by it. On the death of any member of the kutumba, his or her interest in the kutumba property devolved on the remaining members by survivorship. Partition could be effected only at the instance of all the adult members. The children of the female members alone were the coparceners in the kutumba, but not the wife and children of the male members. The Madras Aliyasantana Act, 1949, defined and amended in certain respects the customary Aliyasantana laws relating to, inter alia, intestate succession and partition and in other respects saved the prevailing laws. Thereafter, the Hindu Secession Act, 1956, came into operation whereby the antecedent Hindu Law ceased to have effect to the extent that it was either provided for or was inconsistent with the Act. The first appellant and the other appellants are the widow and sons respectively of C, while the first respondent and the other respondents are C 's sister and her sons respectively. C executed a will on January 15, 1957 bequeathing his interest in favour of the appellants. On January 25, 1957, the respondents issued a notice to C stating that he was the manager of the undivided family, that he was a missanthathi kavaru while the respondents were santhathi kavaurs, as such there were only two kavarus and that they had decided to divide the properties between C and themselves. They, therefore, demanded under the Madras Act a share belonging to their kavaru from out of the entire movable and immovable properties of the family. C replied on January 24, 1957, stating that the respondents ' family was not a santhathi kavaru but a nissanthathi kavaru as the first respondent was mere than fifty years old on the date of the said notice and had no female issue. He admitted, however, that there are only two kavarus in the family, and as both the kavarus were nissanthathi kavarus, each kavaru was entitled to a absolute share in the kutumba properties. He also stated that he bad no objection to the claim for partition made by the respondents and was prepared to effect it provided the respondents cooperated. C subsequently died on February 13, 1957, after the coming into force of the Succession Act. On March 23 1957, the appellants gave a notice to the respondents claiming a separate share under C 's will. The respondents replied to the notice on the same day denying that the appellants had any share because according to them C was entitled only to a life interest under the Aliyasantana law. The appellants plaintitfs then filed a suit against the respondents defendants for partition, separate possession of their 7/20th share of the suit Properties and for mesne profits. The trial court decreed the suit but the High Court dismissed. In appeal by special leave to this Court, the questions that arose for consideration were : (i) whether the rights of the parties, are to be determined in accordance with the Aliyasantana law or under the Succession Act; (ii) what interest C had, 708 under the Madras Act, in the joint family properties on the date of his death; (iii) whether a partition had been effected; (iv) whether C 's will is effective in respect of his share; (v) whether he had a life interest in the properties; and (vi) whether, under the Succession Act. that interest had been enlarged into an absolute interest which could be bequeathed by a will. Dismissing the appeal, HELD : (i) From the definitions of 'kavaru ' [section 3 (b) (i) & (ii) ], 'Kutumba ' section 3(c), 'Nissanthathi kavaru ' section 3(f) and 'Santhathi Kavaru section 3(h), under the Madras Act, it is apparent that the, basic concept of inheritance through a female has been maintained. The presence of even one female in the kavaru will have the effect of continuing the kavaru, while the absence of a female would amount to the absence of progeny. [712D] (ii) Under the provisions of Sections 35 and 36 of the Madras Act, any kavaru represented by the majority of its major members can claim its share of all the properties of the kutumba over which the kutumba has power of disposal. It may thereafter take its share and separate from the kutumba provided that where a kavaru consists of only two persons, such a claim can be made by either of them. But no kavaru can make such a claim during the life time of any common ancestress who is common to such kavaru and to any other kavaru or kavarus of the kutumba who has not completed 50 years unless she has signified her consent in writing or 2/3 of the major members of the kavaru have joined in making the claim for partition. The common ancestress can however on her own volition claim a partition. The share obtained by the kavaru on partition is with all the incidents of a kavaru property which is divisible into certain proportion for a period of 15 years from the commencement of that Act, and thereafter, is divisible per stirpes and each kavaru gets a share on the basis. The same position applies to every kavaru possessing separate property as if it were a kutumba. However, u/s 36(3), if at the time of the partition any kavaru taking a share is a nissanthathi kavaru it would have only a life interest in the property allotted to it, if the kutumba from which it separated has at least one family member who has not completed the age of 50 years or where the kutumba broke up into a number of kavarus at partition, if at least one such kavaru is the santhathi kavaru. But if there is no such female member or santhathi kavaru, the nissanthathi kavaru would have an absolute interest in the properties allotted to it. The properties allotted to a nissanthithi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members, devolves upon the kutumba or where the kutumba is broken up at the same or at a sub sequent partition into a number of kavarus, upon the nearest santhathi kavaru or kavarus. [713H] Gupte, Hindu Law of Succession, 2nd edition, at page 484, referred to. (iii) The provisions of the Madras Act, particularly section 36(2)(h) with its explanation without doubt indicates the time when a share of a kavaru is ascertained on a partition in the family and whether the property is divided by metes and bounds or not the share in the property has to be determined as on the date when the claim is made. In the present case, the claim was made on January 22, 1957, and therefore, the share of the parties has to be determined as on that date even though the physical partition of the properties by metes and bounds may take place some time later. [715B] (iv) Under the provisions of the Succession Act, on the demand for partition, there is a division in status, and though partition by metes and bounds may not have taken place, that family can thereafter never be considered as an undivided family nor can the interest of a coparcener be considered to be an undivided interest. It is a well established principle in the Hindu Law that a member of a joint Hindu family has a right to intimate his definite and unambiguous intention to the other members of the joint family that he will separate himself from the family and enjoy his share in severally. Such an unequivocal intention communicated to the other will amount, to a division in status and on such division, he will have a right to get the division of his specific share of the joint family property in which till then all of them had an undivided coparcenary interest, and in which none of them could claim that he had any right 709 to any specific part thereof. Once the decision to divide has been unequivocally expressed and clearly intimated to his co sharers, whether or not the other co sharers agree, an immediate severance of the joint status is effected and his right to obtain and possess the share to which he is admittedly entitled becomes specified. This principle enunciated in Girja Bai vs Sadashiv Dhundiraj and others L.R. 43 I.A. 151 and Appovier vs Ramasubbier [1866] 11 M.I.A. 75 has been enacted in section 36(2) (h) of the Madras Act which specifies the point of time for ascertaining the share when a division in status is effected. The term "partition" in sub section (3) of section 36 therefore, must be given the same meaning as in Sec. 36(2)(h) of the Madras Act. If so on a demand for partition, a severance of status takes place and the share to which each is entitled in the undivided properties is ascertained. In the case of an Aliyasantana kutumba, this Court, in Panduraja and others vs Dhanawanti and others, held that if the jointness of the kutumba had been disrupted, there is no question on claiming any partition as there is no kutumba in existence as in the present case. Similarly, on the same parity of reasoning, when there are two kavarus, demand for partition would disrupt them within the meaning of section 7(2) of the Succession Act. If he had no undivided interest in the property, his interest cannot be enlarged into an absolute estate nor can his interest devolve upon his heirs by intestate succession. Prior to the Succession Act, neither under the customary law nor under the Madras Act, nor under the Indian Succession Act, the interest of a coparcener in an Aliyanasantana kutumba could have been disposed of by testamentary disposition. But section 30 of the Succession Act made a definite change in the law by enabling a member of an undivided Aliyanasanta kutumba or of a kavaru to dispose of his interest in the kutumba or kavaru properties by a will. [717H] Karthiyayini Kunehi vs Minakshi Ammal [1935] M.L.F. 114 and Mahalinga Sherty vs Jataja Shedthi and others [1956] 2 M.L.F. 446, approved. Padmaraja and others vs Dhanavanthi and Ors. [1972] 2 S.C.C. 100, 104, applied. Girja Bai vs Sadashiv Dhundiraj and others L.R. 43 I.A. 151 and Appovier vs Ramasubbier [1866] 11 M.I.A. 75, referred to. (v) In the present case, there is neither a kutumba nor can C be a kavaru. The two kavarus after the division in status, became only one kavaru, viz. that of respondent No. 1 (C 's sister). C will not be a kavaru within the meaning of section 3(b) of the Madras Act because u/s 3(b)(ii), there being no female line, it is only C 's mother who can be a kavaru but not C. In fact, a male can never be a kavaru either under the customary law or under the Madras Act. When Sec. 7(2) of the Succession Act refers to kavaru in relation to its "undivided interest ', it is the kavaru under the customary law or the Madras Act and not a deemed kavaru for the purpose of partition. If C is not a kavaru, there is no property of a kavaru, which can be disposed of under sec. 30 of the Succession Act. Even under the explanation to that section, the life interest which C had on severance of status is not property capable of being disposed of by a will nor could it devolve by survivorship. He is no longer a kavaru and had, therefore, no interest in the property of the kavaru. C 's live interest is also not enlarged u/s 7(2) of the Succession Act into an absolute interest, because a male with a life interest under the Aliyasantana law being in the same position as a female limited owner under the Hindu law, the Succession Act while enlarging the right of the latter under sec. 14 into an absolute interest did not specifically provide for the enalrging of the right of the former. In the absence of any such specific provisions, it must be held that C 's interest enured till his life time only. [721] Dundara Adapa and others vs Girija & Ors. I.L.R. , applied.

Appeal No. 2063 of 1973. Appeal by special leave from the judgment and decree dated the 25th July. 1973 of the Calcutta High Court in Appeal from Appellate Decree No. 1193 of 1972. Civil Appeal No. 1304 of 1973. From the judgment and order dated the 3rd February, 1972 of the Calcutta High Court in L.P.A. No. 14 of 1969. P. Chatterjee and Rathin Das, for the appellant (In C. A. 2063/73). Urmila Kapoor and Shobha Dikshit, for the respondent (In C.A. No. 2063/73). P.K. Chatterjee, G. section Chatterjee, and Sukumar Basu, for the Advocate General for the State of West Bengal. Sukumar Ghose, for the appellants. (In C.A. No. 1304/73). D. N. Mukherjee, for the respondents (in C.A. No. 1304/73). The judgment of M. H. Beg and V. R. Krishna Iyer, JJ was delivered by Krishna Iyer, J. P. K. Goswami, J. gave a separate Opinion. KRISHNA IYER, J. Calcutta or Cochin, for the urban people of India, the shocking scarcity of a roof to rest one 's tired bones is an L346SupCI/75 778 unhappy problem of social justice that compels control of rent. and eviction laws. In the case now before us, attacking the constitutionality of legislation handcuffing the landlord proprietariat 's right of eviction, the law has to be tested not merely by the cold print of article 19(1)(f) but also by the public concern of article 19(5) and the, compassionate animus of article 39, Parts III and IV of the Constitution together constitute a complex of promises the nation has to keep and the legislation challenged before us is in partial fulfilment of this tryst with the people. These observations become necessary in limine since counsel for the respondents dismissed the concept of social justice as extraneous to an insightful understanding of the section invalidated by the High Court, while we think that judicial conscience is not a mere matter of citations of precedents but of activist appraisal of social tears to wipe out which the State is obligated under the Constitution. The two appeals before us, raising substantially identical points, have been heard together and are being disposed of by a common judgment. Both of them stem from a decision of the Calcutta High Court reported as Sailendra Nath vs section E. Dutt(1). One of the decisions under appeal (C.A. 2063 of 1973) was rendered by a Single Judge of the High Court following a Division Bench ruling of the same Court (i.e., the one reported as Sailendra Nath vs section E. Dull) since he was obviously bound by it. A provision imparting some sort of retroactivity to a 1969 legislative amendment implanting additional restrictions on eviction of premises under the earlier West Bengal rent control law has been voided by the High Court in the judgment& under appeal. The aggrieved tenant in each case has appealed and the State, not being directly a party to the legislation, has entered appearance to support, the legislation and to challenge the Calcutta decision to the extent it has invalidated the retrospective part of the statute. Welfare legislation calculated to benefit weaker classes, when their vires is challenged in Court, casts an obligation on the State, particularly when notice is given to the Advocate General, to support the law, if necessary by a Brandeis brief and supply of socio economic circumstances and statistics inspiring the enactment. Courts cannot, on their own, adventure into social research outside the record and if Government lets down the Legislature in Court by not illumining the provisions from the angle of the social mischief or economic menace sought to be countered, the victims will be the class of beneficiaries the State professed to protect. In this case, we are unable to compliment the State or the Advocate General from this point of view. It may happen that when the Court decides against the validity of a measure or order because Government fails to bring the socially relevant totality of facts, it is used Is an alibi by (1) A.1 R. 779 he latter for the misfortune. Courts cannot help cover up the Executive 's drowsy default or half hearted help in making the socioconomic conspectus available. The West Bengal Premises Tenancy Act, 1956 (Act XII of 956) (for short, referred to as the basic Act) clamped down several restrictions on ejectment of tenants by landlords from buildings, the policy behind it being alleviation of the lot of the weaker segment of the urban community without their own homes in the context of the scarcity of accommodation and the colossal sociceconomic upheaval which would follow if unbridled evictions were allowed. The temptation to evict or rack rent under scarcity conditions is an irresistible evil in our economic order and it is an all India phenomenon that the social conscience of the State Legislatures has responded to this large scale threat by effective control measures. Indeed, for decades now, every State in India has on, the statute book rent control law and, what is more pertinent to the present case, tactics of circumvention have compelled the enactment of additional safeguards from time to time by vigilant statutory measures. West Bengal, a populous State, with an overcrowded city choked by the largest human congregation in the country, enacted the basic Act whereby the plenary right of landlords to recover possession of their buildings was shackled in many ways. Industrial growth and other factors induced demographic congestion such as was witnessed in the urban areas of that State. Consequently, the legislature, was faced with a fresh danger in the shape of ingenious transfers of ownership of buildings by indigenous but indigent landlords and the transferees resorting to eviction on a large scale equipped as they were with better financial muscles and motivated as they were by hope of speculative returns from their investments oil eviction. Presumably, the phenomenal increase of the menance of eviction by the new species of transferee owners of building was countered by a legislative measure the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (Act XXXIV of 1959) (hereinafter referred to as the amendment Act). By this legislation the new class of transferee landlords was subject to a stringent trammel viz. that they should not sue for eviction within three years of the date of transfer (We are not immediately concerned here with certain other changes effected by the Amendment Act). The social objective and the practical effect of this fetter will be con Court has upheldthis provision which is now contained in section 13(3A) sidered briefly the little later. Suffice it to say at this stage the High of the basic Act. However , while holding the provision substantial intra vires the Court has invalidated the giving effect to the provision to pending suits and appeals. Such limited retrospectivity had been incorporated by section 13 of the amending Act and, if the law were only prospective the landlords in the two cases who had initiated their litigation several years prior to the enactment of the Amendment Act would be free from the three year interdict and the other extra restrictions. Once the embargo is out of their way, the decree , for eviction they have secured must stand. On tile contrary, if the restriction on eviction by the transferee landlords were to operate on 780 pending litigation the appellants tenants are immune to eviction in the current proceedings as they now stand. Thus the short constitutional issue is as to whether section 13(3A) of the basic Act to the extent it applies to pending litigation on the strength of section 13 of the Amending Act is violative of articles 14 and 19(1)(f) of the Constitution, weapons relied upon for the attack before the High Court, and here. We will proceed to consider the constitutional vulnerability of this limb of the protective legislation. By way of anticipating our conclusion we may also pose the problem whether sections 1 3 and 4 of the Amendment Act can be validly implemented vis a vis pending actions in any other just manner which will preserve the additional protection, minimise multiplicity of litigation and make law and justice bedfellows in the &hanged statutory circumstances. Some background observations to appreciate the contest in court are necessary. No social realist will deny the frightful dimensions of the problem of homeless families and precarious tenancies; and if the Directive Principles of State Policy are not to be dismissed by the masses as a 'teasing illusion and promise of unreality ', curtailment, in public interest, of such extreme rights of the landlord as are 'red in tooth and claw ' is a constitutional compulsion. The Court, informed by this sore economic situation and reinforced by the initial presumption of constitutionality, hesitates to strike a socially beneficial statute dead, leading to escalation of the mischief to suppress which the House legislated unless, of course, a plain breach of the fundamental right of the citizen is manifest. The perspective of the amending Act is sketched by the High Court in lurid language : "The scarcity of accommodation is a burning problem, not only of the State of West Bengal but of the other States as well. Keeping pace with the needs of the gradually swelling population of West Bengal, new buildings have not been built owing to abnormal high price of land and materials. A large majority of the people of West Bengal live in those premises at the mercy of the landlords. " The explosive import of neglecting such a distressing urban development reasonably obliges the State to impose drastic restrictions on landlords ' right to property. And when circumvention of wholesome legal inhibitions are practised on a large scale the new challenge is met by clothing the law with more effective amount and that is the rationale of the Amendment Act. The learned Judges rightly refer to the legislative proceedings, notorious common knowledge and other relevant factors properly brought to their ken. The 'sound proof theory ' of ignoring voices from parliamentary debates, once sanctified by British tradition, has been replaced by the more legally realistic and socially responsible canon of listening to the legislative authors when their artifact is being interpreted We agree with the High Court when it observes : "Proceedings of legislature can be referred to for the limited purpose of ascertaining the conditions, prevailing at 781 or about the time of the enactment in question, which actuated the sponsor of the bill to introduce the same and the extent and urgency of the evil, sought to be remedied. In the Statement of Objects and Reasons of the West Bengal Premises Tenancy (Second Amendment) Bill, 1969, it is stated that it has been consider necessary that some more reliefs should be given to the tenants against eviction. It is found from the speech of the Minister at the time of introducing the Bill in the legislature, that the problems of tenants are many : there are landlords of different kinds : there is one class original owners who are the old inhabitants of the city : these owner landlords are Dot affluent: they solely depend upon the rents received from the tenants. It has been ascertained from experience that two of the, grounds of eviction, namely, of the landlords and for the purpose of building and rebuilding, have been misused by the landlords. In the city of Calcutta and other towns, there are millions of tenants who are left at the mercy of the landlords. In this background and after taking into account similar provisions in other States, it has been decided that some restrictions ought to have been imposed upon transferee landlords prohibiting them from bringing ejectment suits against the tenants within three years from their purchase. On the above two grounds and for that purpose, the said classification has been made. " The conclusion of the Court, crystellised in the following words, commends itself to us : "Taking an overall view of the various considerations, the statement of, the Minister, the objects of the Bill, matters of common knowledge and state of facts, existing at the time of the legislation, it may be well conceived that underlying policy and objects of the amended provision is to give more protection to the tenants against eviction and the classification of landlords into owner landlords and transfereelandlords is based upon a rational and intelligible differentia and we hold accordingly. " Proceeding to examine the limited attack on section 13(3A) of the basic Act read with section 13 of the Amending Act, we have to remember die comity of constitutional instrumentalities and raise the presumption that the legislature understands and appreciates the needs of the people and is largely aware of the frontiers of and limitations upon its power. (See: The State of Bombay vs R. M. D. Chamar baguwala(1) and Shri Ram Krishna Dalmia vs Shri Justice section R. Tendolkar & Others(2). Some Courts have gone, to the extent of holding that "there is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and 'to doubt the constitutionality of a law is to resolve it in, favour of its validity. "(3) Indeed, the Legis (1) ; (2) ; (3) Constitutional law of India by H. M. Seervai p 54 vol. 1. 782 lature owes it to the Court to make like respectful presumptions. We therefore view the provision impugned through a socially constructive, not legally captious, microscope to discover glaring unconstitutional infirmity, if any, and not chase every chance possibility of speculative, thought which may vitiate the law. Stray misfortunes when laws affecting large chunks of the community are enacted are inevitable and the respondents before us may perhaps belong to that category. Social legislation without tears, affecting vested rights, is impossible. Statutory construction has a benignant sensitivity and we are satisfied the High Court, in substantially upholding the Amendment Act, has done right, but in striking down the retrospective portion of the section has stumbled into a specious error. It is helpful to reproduce the relevant portion of section 13 of the basic Act in its unamended state and the amendments dovetailed into it by the 1969 Act, The so called 'retrospectivity ' of this provision has been anathematised by the respondent landlords and annulled by the High Court : "13(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: unamended cl. (f) : where the premises are reasonably required by the landlord either for purposes of building or rebuilding or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held; cls. (f) and (ff) substituted therefor (f)subject to the provisions of sub section (3A), and section 18A, where the premises are reasonably required by the landlord for purposes of building or re building or for making thereto substantial additions or alterations and such building or rebuilding or additions or alterations cannot he carried out without the premises being vacated, (ff) subject to the provisions of subsection (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation, Sub section (3A) newly introduced. 13(3A) Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub section (1) shall be insti 78 3 tuted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest : Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned in clause (f) of sub section (1) before the expiration of the said period of three years if the Controller, on the application of the landlord and after giving the tenant an opportunity of being beard, permits, by order, the institution of the suit on the ground that the building or rebuilding, or the additions or alteration, as the case may be, are necessary to make the premises safe for human habitation. " Once the substantive restriction super added by section 13(3A) is held valid, we have to focus attention only on the extension of the new ban to pending proceedings. That legislative competence to enact retroactively exists is trite law and we have only to test its validity on the touchstone of articles 14 and 19 (1) (f) pressed into service before us. Law is a social science and constitutionality turns not on abstract principles or rigid legal canons but concrete realities and given conditions; for the rule of law stems from the rule of life. We emphasize this facet of sociological jurisprudence only because the High Court has struck down section 13 of the Amendment Act on surmises, possi bilities and may be rather than on study of actualities and proof of the nature, number and age of pending litigations caught in the net of the retrospective clause. Judges act not by hunch but on hard facts properly brought on record and sufficiently strong to rebuff the initial presumption of constitutionality of legislation. Nor is the Court a third Chamber of the House to weigh whether it should legislate retrospectively or draft the clause differently. We find no foundation for the large assumptions made by the High Court and duly repeated before us by counsel that there may be cases of ejectment instituted prior to 1956 or that a number of suits and decrees perhaps decades old will unjustly be nullified by the previous operation of the new ban. Recondite instances and casual hardships cannot deflect constitutional construction of social legislation, if the main thrust of the statute relates to a real social evil of dimensions deserving to be antidoted by antedated legislative remedy. In the present case, indubitably the State was faced with a new, insidious and considerable situation of exploitation, undermining the security of tenancy conferred by the basic Act. A large number of original landowners living in their own home could not, under the basic Act, claim recovery of possession, being occupants of their own houses. Likewise, they could not urge the ground of recovery for rebuilding, not being financially able to invest on such a costly venture. They had to look up to modest old time rentals as the only source of return and lest the penurious tenantry desperately inhabiting little tenements be forced to pay extortionate rents the rent control law of 1956 froze the rates at the 1940 level with gentle increases as provided therein. However, for now buildings to be constructed 784 special incentive provision was made by deeming the contract rent as fair rent, thus ensuring a high return on building investment. The social upshot of this scheme was that the old landlords found their ownership a poor return investment, saw a new class of wealthier investors streaming into cities and towns ready to buy the premises evict old tenants, re let on rack rents or re build and reap a rich return. They had no buildings of their own and could prove plans to rebuild, thus disarming the nonevictability provision of section 13 of the basic Act. The transferees could thus get decrees for eviction under the basic Act. Naturally, transfers of buildings to this somewhat speculating class increased and the spectacle of eviction litigation ' or potential eviction proceedings was projected on the urban scene. The Legislature promptly reacted by the Amendment Act to rescue the lessees by clamping down new restrictions by way of section 13 (3A). A three year moratorium was given to the tenants from being hunted out of their homesteads by imposing a ban on institution of suits for eviction by transferee landlords. This would both disenchant speculative purchases and provide occupants time to seek alternative housing. Presumably, these objects inspired the law makers to extend the embargo backwards to pending eviction proceedings. Quite conceivably, the tendency to create a transferee class of real estate owners gradually gathered in volume and showed up in rashes of pending actions. When Government was alerted amending legislation was proposed. Unfortunately, the State 's legal wing has failed to protect, in Court the class for whose benefit the amending law was made by placing luscent social or statistical materials on these aspect . As earlier stated by us, Government have a duty, where social legislation to protect the weak are challenged, to exhibit the same activism in the Halls of Court as in the Houses of Legislature. Failure in the former duty can be as bad as not promulgating the law. Not an elucidatory affidavit by the State nor even the Minister 's explanatory speech has been filed in this Court. We make these observations because of the handicaps we have faced and the little help on facts the State has given to sustain the legislation. The Calcutta High court has upheld the vires of sub section (3A) but invalidated its application to pending litigation. So the short issue is whether this projection into the past of the otherwise reasonable restriction on the right of eviction arbitrary, irrational, ultra vires ? If yes, the lethal sting of articles 14 and 19(1) (f) will deaden section 13 of the Amendment Act. And the High Court has held so on ,he latter Article. The prospective validity of the restriction under articles 14 and 19(1) (f), the High Court thinks, is vindicated by sound classification and sanctioned reasonably by the interest of the general public. Having regard to the policy of the legislation, the classification of landlords into two classes of owner landlords and transferee landlords and the imposition of an embargo on the latter minacious class against bringing eviction suits within three years of purchase passes the dual tests of reasonable classification and the differentia having a rational nexus with the statutory object. Therefore, the High Court had no hesitation and we totally concur that the provision is 78 5 impregnable. The controversy rages round giving effect to these stringent restraints newly enacted on earlier legal actions. This, it is contended, is a horrendous invasion of property right,; and unjust anteriority which hits innocent plaintiffs whose, purchases were beyond three years. Before us respondents ' counsel have contended that article 14 is violated. by section 3 read with section 4 of the Amendment Act although the high Court has negatived this submission thus : "We have carefully considered the arguments advanced by the learned counsel and we are of the Opinion that the retrospective operation of sub section (3A) on pending suits and appeals does not offend Article 14 of the Constitution. " Since the argument, dressed, differently, has been urged before us again we will briefly deal with it, agreeing as we do with the High Court. Plaintiffs whose transfers are twenty years ago or two years before the Act, are lugged together and subjected to the same ban if their suits were instituted within three years of the transfer. This blanket ban regardless of the varying periods which have elapsed after the transfers and before the Act was passed was unequal treatment or rather harshly equal subjection to restriction of plainly unequally situated transferees. There is seeming attractiveness in this presentation. But Courts are concerned not how best to hammer out equal justice but to oversee whether the classification is without rational basis unrelated to the object of the Act. That is why we are confined to check whether the reasoning on this aspect adopted by the High Court is not tenable. We may or may not disagree with the wisdom of the Legislature in the grouping adopted or hold views about fairer ways of treatment. But our powers are judicial, not legislative and arbitrariness and irrationality are not writ large in the method of differentiation the legislature has here chosen. In the words of A. K. Mukuherji J : "In the instant case, suits of the affected transfereelandlords may be regarded as a sub class, within a class and, if within the said sub class, the suits are not differently treated, they will not be hit by Article 14. The persons affected are transferee landlords who instituted their suits within three years of their purchase and they form a separate class and, among the suits of that 'affected class ', there is no discrimination. The law applied equally with respect to the pending suits with regard to this affected class. " Some hardship is bound to occur peripherally in any mode of classification and a few hard cases (we have not been shown whether many have been struck by this pattern of grouping) cannot guide the Court in upsetting legislative compartmentalisation. The next attack by the respondents is that the deprivation of the right to sue is absurdly beyond the object of the Act when applied to pending cases where the transfers took place more than three years before the Act. Were we draftsmen of legislation, may be counsel 's submission could have had more potency. But our limited power is to 786 examine the reasonableness of the restriction, not by substituting our personal notions but by interfering if the Legislature has gone haywire in unreasonably hamstringing transferee landlords by dismissing suits brought long before the legislative bill was in the womb of time. In an earlier case this Court observed(1) "Right at the, threshold we must warn ourselves of the limitations of judicial power in this jurisdiction. Mr. Justice Stone of the Supreme Court of the United States has delineated these limitations in United States vs Butter ; 80 Law. Ed. 477 thus: The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts ire concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our exercise of power is our own sense of self restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government. " In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review." The High Court has assumed that even proceedings started prior to 1956 may be affected. This, admittedly, is wrong as pre basic Act suits will be governed by the, then law as provided in section 40 and the Amendment Act amends only the 1956 Act. It may also be conceded that in both the appeals before us, thanks to Indian longevity of litigation, more than three years from the date of transfer in favour of the plaintiff has passed and thus the spirit of the protection in that sense is fulfilled. Indeed, counsel for the. respondents urged that the validation of the retrospective limb of the law would only drive the parties to fresh suits, thus promoting multiplicity of suits ruinous to both sides with no social gain. There is force in this submission. Its relevance to decide, the constitutional issue is doubtful but its influence on our ultimate solution in this case, as will be seen later, is undeniable. A closeup of the social milieu leading up to the enactment in 1969 of the Amendment Act is useful to identify the substantial, mischief the law was intended to overpower. Did that evil reasonably necessitate, for effectual implementation of purpose, the extension of the new law to pending suits and appeals ? How many suits, appeals and second appeals by transferees within the three year belt were pending? How long had they been so pending? Were there only stray eviction cases of long ago and was it feasible or necessary to (1) Murthy Match Works vs Asst. Collector of Central Excise, A.T.R. 1974 8.C. 497, 503. 787 draw a line somewhere to prevent injustice to non speculative and old time buyers of buildings without impairing the limited immunity meant for tenants and intended against now realty investors ? On these facts the State has sat with folded hands and we have been thrown on our own to scan and sustain or strike down. But here arises the significance of initial presumption of constitutionality. The High Court has made short shrift of this plea thus : "There is nothing on the record to show that the mischief, sought So be remedied by the amended legislation, was in existence since 1956. On the other hand, the ministerial speech, referred to above, rather indicates that the said mischief was of comparatively recent origin. In this context, the application of the restriction on the omnibus scale to ill pending suits and appeals would smack of unreasonableness. " Who has the onus to place compelling facts, except in flagrant cases of gross unreasonableness, to establish excessiveness, or perversity, in the restriction imposed by the statute? Long ago in Dalmia 's Case(1) this Court held that "there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles"; and 'that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds ," If nothing is placed on record by the challengers the verdict ordinarily goes against them. Moreover, what is the evil corrected by the Amendment Act? The influx of a transferee class of evictors of tenants and institution of litigation to eject and rack rent or re build to make larger profits. Apparently, the inflow of such suits must have been swelling slowly over the years and when the stream became a flood the Legislature rushed with an amending bill. Had it made the law merely prospective, those who bad, in numbers, already gone to Court and induced legislative attention would have escaped the inhibition. This would defeat the object and so the application of the additional ban to Pending actions could not be called unreasonable. To omit to do so would have been unreasonable folly. The question is whether those cases which were filed several years ago should have been carved out of the category of transferees hit by the Act ? Where do you draw the line ? When did the evil assume proportions ? These are best left to legislative wisdom and not court 's commonsense although there may be grievances for some innocent transferees. (1) ; , 297 propositions (b) and (c). 788 If this be the paradigm of judicial review of constitutionality, we have to ignore exceptional cases which suffer misfortune unwittingly. The law is made for the bulk of the community to produce social justice and isolated instances of unintended injury are inevitable martyrs for the common good since God Himself has failed to make perfect laws and perfect justice, Freaks have to be accepted by the victims rightly or wrongly as forensic fate: Not that it should be so but human infallibility being unattainable, easily the next best in social justice is to promote the public weal sacrificing some unmerited private hurt as unfortunate but unavoidable. It must be conceded that prima facie the two landlord respondent 's had purchased the buildings in the early sixties and three time three years or more have now passed since that date. But while considering constitutionality can we be moved by such accidental instances ? No. The substantial evil has been substantially met by a broad application of the new ban to pending proceedings. We see in the Amendment Act no violation of article 19(1) (f) read with 19(5). The same High Court, in a later case Kalyani Dutt vs Pramila Bala Dassi(1) came to the same conclusion by what it called 'independently considering the question '. We discern nothing substantially different in the analysis or approach to merit review of our result. We hold section 13 of the Amendment Act valid and repel the vice of unreasonableness discovered in both the reported rulings of the High Court. And if reasonable interpretation can avoid invalidation, it is surely preferable. Here humanist considerations, public policy and statutory purpose may provide guidelines of construction within reasonable limits. Section 13 of the Amendment Act reads: "13. Retrospective effect. The amendments made to the said Act by section 4, 7, 8 and 9 of this Act shall have effect in respect of suits including appeals which are pending at the date of commencement of this Act. " The Court is called upon 'to give effect to section 4. of this new Act. ' Section 4 introduced amendments in section 13 of the basic Act which we have set out earlier. There is no doubt that the purpose of the law is to interdict, for a spell of three years, institution of suits for eviction on grounds (f) and (ff) of sub section Section 13 of the Amending Act makes it expressly applicable to pending actions, so much so the operation of the prohibition is not simply prospective as in the Kerala case cited before, us (Nealakandhayya Fillai vs Sankaran(2). Section 13, fairly read, directs that the amendment made by section 4 shall have effect in respect of suits, including appeals, pending at the commencement of the Act. We are therefore bound to give effect to section 4 in pending actions, regardless of isolated anomalies and individual hardships. As earlier noticed, section 4 has two limbs. It amends section 13 of the basic Act by substituting two new clauses (f) and (ff) in place of the old clause (f) of sub section (1) of section 13 Secondly, it forbids, for a period of three years from the date of acquisition, suits by new acquirers of (1) I.L.R. (2) (1961) R.L.T. 755. 789 landlord 's interest in premises, for recovery of possession on any of the grounds mentioned in cl. (f) or cl. (ff) of sub section (1). The result of the= two mandatory provisions has to be clearly understood. For one thing although the old cl. (f) is substantially similar to the present cls. f) and (ff), the latter imposes more severe restrictions protecting the tenants. Much more has to be proved by the landlord now before he can get eviction than when he was called upon to under the earlier corresponding provision of the basic Act. Moreover, the three year prohibition against institution of the suit is altogether new. It follows, therefore, that on the present allegations and evidence the landlord may not get a decree, his suit having been instituted at a time when he could not have foreseen the subsequent enactment saddling him with new, conditions. We consider that where two interpretations are possible that which validates the statute and shortens litigation should be preferred to the one which invalidates or proliferates it. We are guided by that consideration in the interpretative process. We are satisfied further that originally brought in, is defective since it did not contain and ordinarily could not averments complying with the new cls. (f) and (ii) of sub section (1) of section 13 and we are making it effectively by construing the word 'institute ' in a natural and grammatical way. The suit is really instituted in compliance with cls. (f) and/or (ff) only when the new pleading is put in. The bigger roadblock in the way of the plaintiff is in a pending action lies in the prohibition of the institution of the suit within three years of the transfer from the landlord. Indeed, such prohibitions are common in rent control legislation as has been noticed by the Calcutta High Court and is found even in agrarian reforms laws (vide Malaber Tenancy Act, as amended by Act VII of 1954, Madras). Section 13 of the Amendment Act compels the postponement of the institution of the suit (including appeal) for a period of three years from the date of the transfer. In both the cases before us, the suits were instituted within the prohibited period of three years. The argument therefore is that the suits must be straightaway dismissed, the institution being invalid. We do not think that this consequence is inevitable. 'To institute, is 'to begin or commence ', in plain English. The question then is whether the suit can be said to begin on the date it was filed in 1961 or 1964 as the case may be. Here we have to notice a certain nice but real facet of sub section The prohibition clamped down by sub section (3A), carefully read, is on suits for recovery of possession by transferee landlords 'on any of the grounds mentioned in cl. (f) or cl. (ff) of subs.(1) '. Obviously the suits with which we are concerned are not for recovery on grounds contained in cis. (f) and (ff). They were based on the repealed cl. (f) of section 13 of the basic Act. Strictly speaking, sub section (3A) brought in by section 4 of the Amending Act applies only if (a) the suit is by a transferee landlord; b) it is for recovery of possession of premises and (c) the ground for recovery is what is mentioned in cl. (f) and cl. (ff) of sub section Undoubtedly the third condition is not fulfilled and there fore sub section (3A) is not attracted. This does not mean that the suit 790 can be proceeded with and decree for recovery passed, because section 13 of the basic Act contains a broad ban, on eviction in the following words : "13(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises, shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (emphasis, ours) Since the new cls. (f) and (ff) are included by the Amendment Act in section 13 of the basic Act and since the suits we are concerned with, as they now stand, do not seek eviction on those grounds they will have to be dismissed on account of the omnibus inhibition on recovery of possession contained in section 13 itself. A just resolution of this complex situation was put by us to counsel on both sides and the learned Advocate representing the State readily agreed that the policy of the legislation and the conditions in the Amendment Act would be fulfilled if the interpretation we proposed were to be accepted. We are satisfied that as far as possible courts must avoid multiplicity of litigation. Any interpretation of a statute which will obviate purposeless proliferation of litigation, without whittling down the effectiveness of the protection for the parties sought to be helped by the legislation, should be preferred to any literal, pendantic, legalistic or technically correct alternative. On this footing we are prepared to interpret section 13 of the Amendment Act and ,give effect to section 4 of that Act. How do we work it out ? We do it by directing the plaintiffs in the two cases to file fresh pleadings setting out their grounds under cls. (f) and/or (ff)_ of sub s.(1) if they so wish. On such pleading being filed we may legitimately bold that the transferee landlord institutes his suit on grounds mentioned in cls. (f) or (ff) of sub section (1) on that '.ate. It is only when he puts in such a pleading setting out the specific ground covered by sub section (3A) of section 13 that we can say he, has begun or instituted a suit for the recovery of possession of the premises on that ground. Institution of a suit earlier has to be ignored since that was not based on grounds covered by cls. (f) and/or (ff) and is not attracted by sub section (3A). He begins proceedings on these new grounds only when he puts in his pleading setting out these_grounds. In spirit and in letter he institutes his suit for recovery on the new grounds only on the date on which he puts in his new pleading. We cannot be ritualistic in insisting that a return of the plaint and a representation thereof incorpo rating amendments is the sacred requirement of the law. On the other hand, social justice and the substance of the matter find fulfilment when the fresh pleadings are put in, subject of course to the three year interval between the transfer and the filing of the additional pleading. Section 13 of the Amendment Act speaks of suits including appeals. It thus follows that these fresh pleadings can be put in by the plaintiff either in the suit, if that is pending. or in appeal or second appeal, if that is pending. Thereupon, the opposite party. tenant, will be given fin opportunity to file his written statement and the Court 'Will dispose of it after giving both sides the right to lead 791 additional evidence. It may certainly, be open to the appellate Court either to take evidence directly or to call for a finding. Expeditious disposal of belated litigation will undoubtedly be a consideration with the court in exercising this discretion. The proviso to sub section (3A) can also be complied with if the plaintiff gets the permission of the Rent Controller in the manner laid down therein before filing his fresh pleading. We, are conscious that to shorten litigation we are straining language to the little extent of interpreting the expression 'institution of the suit ' as amounting to filing of fresh pleading. By this construction we do no violence to language but, on the other hand, promote public justice and social gain, without in the least imperiling the protection conferred by the Amendment Act. Ruinous protraction of litigation, whoever may temporarily seem to benefit by delay, bankrupts both in the end and inflicits wounds on society by sterile misuse of money. Tenant passengers who prolong their expensive flight on the litigation rocket, are buying tickets for financial crash, drugged though they be by the seeming blessings of law 's delays. Courts, by interpreting the expression 'institution of suits ' cannot authorize reincarnation, all over again, of litigation for eviction. We save the tenant by applying it to pending cases and save him also from litigative waste. This consideration is itself germane, to the larger concept of justice which it is the duty of Courts to promote. Law finds its finest hour when it speaks to justice on fair terms. In the present case our interpretative endeavour has been imbued with this spirit. In the process of interpretation where alternatives are possible ' the man in the law influences the law in the man may be and the construction on sections 4 and 13 of the Amendment Act herein adopted, we admit, appeals to us as more, humane. The calculus of statutory construction relating to complex problems of the community cannot be hide bound by orthodox text book canons. An obiter, maybe. More buildings is the real solution for dwelling shortage; freezing scarcer accommodation relieves for a little while. Tiger balm is no serious cure for brain turnover We make no more comments on the need for dynamic housing policies beyond statutory palliatives. These belong to legislative 'wisdom ' and administrative ,activism ' and not to judicial 'constitutionalism '. It was noticed in the course of arguments that a later Amending Act of 1970 purporting to give relief to tenants against whom decrees for eviction bad been passed but dispossession had not ensued, had been put on the statute book. It is surprising that counsel on either side did not choose to address us any arguments on the basis of those provisions. We therefore do not go into the impact of that Act on situations where eviction has been ordered by Courts. We therefore allow the appeals with costs but direct the High Court to dispose of the cases in the light of the directions and obser 792 vations we have made. It will be open to the, Court seised of the matter to direct, in its discretion, award of costs to be incurred hereafter. GOSWAMI, J.Civil Appeal No. 1304 of 1973 is by certificate granted by the Calcutta Hi Court and Civil Appeal No. 2063 of 1973 is by Special Leave of this Court. The first one arises out of Letters Patent Appeal No. 14 of 1969 of the Calcutta High Court dismissed on February 3, 1972, relying upon its earlier decision in Kalyani Dutt vs Pramila Bala Dassi since reported in I.L.R. (1972) 2 Calcutta 660. A preliminary question had arisen in connection with the aforesaid Letters Patent Appeal along with three other appeals at an earlier stage with regard to the constitutionality of section 13(3A) of the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (briefly the Amendment Act). A Division Bench repelled the contention of the appellants in decision which has since been reported in A.I.R. (1971) Calcutta 331 (Sailendra Nath Ghosal & Ors. vs Sm. Ena Dutt & Others). The Division Bench had held that sub section (3A) of section 13 in so far as it was retrospective in operation was ultra vires Article 19(1) (f) of the Constitution on the ground of unreasonableness. Since, however, the Letters Patent Appeal was not completely disposed of, the bar of sub section (3A) was this time pleaded asserting that Article 19 was not at all attracted to the present case on the ground that the right of reversion of the landlord, namely, the right to recover possession of the property from the tenant, is not a right of property which is a condition precedent to the application of Article 19(1) (f) and consequently, the question as to the infringement of fundamental right did not at all rise and that there could not be, any scope for holding that the provision of sub section (3A) offended against Article 19(1)(f). This second contention which was allowed to be raised by the Letters Patent Bench was also repelled following its earlier decision in Kalyani Dults case (supra) disposed of on September 7, 1971. Civil Appeal No. 2063 of 1973 arises out of the decision of the High Court in Second Appeal No. 1193 of 1972 disposed of on 25th July, 1973 relying upon Sailendra Nath Ghosal 's case (supra) which is the subject matter of appeal in Civil Appeal No. 1304 of 1973. The history of tortuous litigation in both the appeals may also be noticed. In Civil Appeal No 1304 of 1973 the plaintiff (respondent herein) purchased the premises in suit on February 16, 1961. She instituted Title Suit No. 480 of 1961 in the court of Munsif of Sealdah, District 24 Pargana, for ejectment of the defendant, on July 24, 1961. The suit was decreed by the Munsif on July 21, 1964, but was dismissed by the lower appellate court on May 17, 1965. On second appeal at the instance of the plaintiff, the High Court framed an additional issue and remanded the suit to ram a finding on the same. On receipt of the finding of the court below, the learned single Judge of the High Court, dismissed the second appeal and granted 793 leave to a Letters Patent Appeal. That appeal was dismissed on February 3, 1972. The High Court granted certificate to appeal against that decision to this Court on May 24, 1973, referring to the earlier certificate granted by that Court in Kalyani Dutt 's case (supra). That is how Civil Appeal No. 1304 of 1973 is now before us. The facts in Civil Appeal No. 2063 of 1973 are these. The property in suit was purchased by the plaintiff (respondent herein) on February 7, 1964 and the eviction suit No. 76 of 1966 was instituted in February 1965. The suit was dismissed by the Trial Court on October 11, 1966. On appeal by the plaintiff, the Additional District Judge allowed the appeal on June 8, 1967, and remanded the suit for disposal after taking additional evidence. The Munsif thereafter decreed the plaintiff 's suit on December 23, 1968. On appeal by the defendant the Additional District Judge allowed the same and dismissed the suit on April 8, 1969. On plaintiff 's appeal to the High Court in Second Appeal No. 968 of 1969, the High Court allowed the same on April 3, 1971 and remanded the suit to the Munsif for retrial. The Munsif again dismissed the plaintiff 's suit on September 13, 1971. On appeal by the plaintiff the Additional District Judge allowed the same and decreed the suit on April 29, 1972. The High Court on appeal by the defendant dismissed the second Appeal on July 25, 1973, relying upon Salindra Nath Ghosal 's case (supra) disposed of on January 28, 1971. The defendant then obtained special leave. Thus the life of litigation in Civil Appeal No. 1304 of 1973 is now in the fourteenth year after purchase of the premises by the plaintiff six months earlier. The second one is a decade old; the property having been purchased about a year earlier. Both the appeals were argued together and will be governed by this common judgment. The suits in both the appeals are by what has come to be known as transferee landlords. They have instituted suits in one case within six months of the purchase in 1961 and in the other within one year of the purchase in 1965. During the long pendency of the litigation the West Bengal Premises Tenancy (Second Amendment) Act was passed which came into force on November 14, 1969. and section 4, inter alia, was made applicable to pending suits including appeals. It amended the West Bengal Premises Tenancy Act, 1956 (West Bengal Act XII of 1956) (briefly the Original Act). Section 4 of the Amendment Act introduced the following changes in section 13 of Section 13(1) (f) of the Original Act stood as follows the Original Act : "13(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises %hall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely (f)Where the premises are reasonably required by the landlord either for purposes of building or rebuilding; or 4 L346Sup. CI/75 794 for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held". After the amendment of section 13 by section 4 of the Amendment Act clause (f) was split up into two clauses (f) and (ff) which read as under : "(f) Subject to the provisions of,sub section (3A) and section 18A, where the premises are reasonably required by the landlord for purposes of building or rebuilding or for making thereto substantial additions or alterations, and such building or re building, or additions or alterations. cannot be carried out Without the premises being vacated; (ff) Subject to the provisions of sub section (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation". In addition, section 4 of the Amendment Act introduced a new subsection (3A) which reads as follows : "Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest; Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned in clause (f) of sub section (1) before the expiration of the said period of three years if the Controller on the application of landlord and after giving the tenant an opportunity of being heard, permits, by order, the institution of the suit on the ground that the building or re building or the additions, or alterations, as the case may be, are necessary to make the premises safe for human habitation". It should be noted that the grounds for ejectment in the earlier sub section (f) ,ire the same as the new grounds in clauses (f) and (ff) except for some additional restrictions. The common grounds for eviction are, broadly speaking, reasonable requirement for the Purpose of building or rebuilding, etc. [sub clause (f)] and reasonable requirement for occupation by the landlord, etc. [sub clause (ff)]. There is, there fore, no particular significance to the mention of " grounds" in clause (f) or clause (ff) of subsection (1) in subsection (3A). ,Section 13 of the Amendment Act which is the bone of contention grants retrospectivity to section 4 of the Amendment Act and, therefore, necessarily to sub section (3A) and section 13(1)(f)(ff). The grievance centres round retrospectivity of sub section (3A) and 795 section 13(1)(f) and (ff) made applicable by force of section 13 of the Amendment Act to suits and appeals pending on the commencement of the Act. It may be in order first to deal with the question of retrospectivily of sub section (3A) which is the principal ground of attack in these appeals. Section 13 of the Amendment Act provides that. effect should be given to section 4 of the Amendment Act in pending suits including appeal on the date of the commencement of the Act. The suits of the particular category by transferee landlords, therefore, could be pending on commencement of the Amendment Act and these may have been instituted several years prior to the Amendment Act. There may also be appeals pending in different appellate courts against decrees in such suits. The appeals necessarily have to be understood as appeals arising out of suits instituted within the three years ' ban. The tenants are now permitted to take objection on the score of contravention of section 13(3A), before the courts either in a pending suit or in a pending appeal against decrees in such suits and the point for consideration then would be whether such a suit was instituted within three years ' ban and the appeal was pending against such a banned suit. When section 13 of the Amendment Act provides that section 4 therein has to be given effect in pending suits including appeals, effect has to be given by the courts. Now how will effect be given to section 13(3A) ? Retrospectivity to be given under section 13 of the Amendment Act to section 4 broadly requires compliance as follows (1) that no suit for eviction by a transferee landlord shall be instituted within three years of his acquisition of the premises; (2) if eviction is sought on the ground under section 13(1)(f) of the Amendment Act, an additional restriction is put, namely, that "such building or rebuilding or additions or alterations cannot be carried out without the premises being vacated"; (3) if eviction is sought on the ground under section 13(1)(ff), a further restriction is put upon the right of the landlord to evict, viz., that "the landlord or such person is not in possession of any reasonably suitable accommodation". Under proviso to section 13(3A) a transferee landlord can, however, institute a suit within three years ' ban provided he obtains prior permission from me Controller who on an application by the landlord and after hearing the parties may decide whether permission should be given or not. Prime facie, a suit which had already been instituted prior to the Amendment Act would not come within the mischief of section 13(3A) since this sub section, in terms, prohibits only institution of suits and does not provide for dismissal of suits already instituted. Similarly while there is a relaxation in favour of a transferee landlord under the proviso to obtain permission from the Controller this bene fit is out of the way even in a genuine case where the suit had already 796 been instituted within three years of purchase and the same or an appeal therefrom is now pending after the passing of the Amendment Act. In this regard also it appears sub section (3A) is not intended to be attracted to suits which were already instituted prior to the Amendment Act. But as will be seen hereafter the above position is altered by the express provision of section 13 of the Amendment Act whereby it is intended that the court should give retrospectivity, inter alia, to section 4 of the Amendment Act. On the terms of only section 13 (3A) it is difficult to hold that it would bring old sections within the mischief of section 13 (3A) which imposes a ban expressly on institution of suits within three years of the acquisition of ownership of the premises subject to the relaxation contained in the proviso thereto. This being the correct interpretation of sub section (3A), taken by itself, what is the effect of section 13 of the Amendment Act upon this provision? Section 13 of the Amendment Act in seeking to give retrospective effect to sub section (3A) does exactly what sub section (3A) by itself contra indicates. The first part of section 13(3A) which provides for a ban against institution of suits for eviction within three years of acquisition of the premises must be given effect to under section 13 of the Amendment Act in pending suits and in pending appeals arising out of the decrees passed in such suits provided the former had been instituted within the period of the ban. If, therefore, after the Amendment Act it is found in a pending suit or in a pending appeal that the particular suit was instituted within the three years ' ban the same will have to be dismissed and only in that way the court will be able to give effect to sub section (3A). With regard to the proviso of subsection (3A), when the ground of eviction is relatable to section 13(1)(f) of the Amendment Act the court will have to dismiss the suit in absence of the requisite permission. That being the practical result of restrospectivity given to subsection (3A), is that sub section, in so far as it is retrospective, violative of Article 19(1)(f) of the Constitution? That takes us to the object and purpose of the Amendment Act. The Statement of Objects and Reasons as quoted in Kalyani Dutt 's case (supra) is as follows "It has been considered necessary that some more relief should be given to the tenants against eviction, that the necessity of tender of rent to the landlord every time the rent is deposited with the Controller during a continuous period should be dispensed with, that the interests of the residents of hotels and lodging houses should be safeguarded and that the penalties for contravention of some of the provisions of the West Bengal Premises Tenancy Act, 1956, should be made more stringent". In the earlier judgment of the High Court which is also the subject matter of Civil Appeal No. 1304 of 1973 the High Court referred to the statement of the Minister at the time of piloting of the Bill in the following words: 797 "It is found from the speech of the Minister at the time of introducing the Bill in the legislature, that the problems of tenants are many: there is one class original owners who are the old inhabitants of the city; these owner landlords are not affluent; they solely depend upon the rents received from the tenants. It has been ascertained from experience that two of the grounds of eviction, namely, requirement of the premises for own use of the landlords and for the purpose of building and re building, have been misused by the landlords. In the city of Calcutta and other towns, there are millions of tenants who are left at the mercy of the landlords. In this background and after taking into account similar provisions in other States, it has been decided that some restrictions ought to have been imposed upon transferee landlords prohibiting them from bringing ejectment suits against the tenants within three years from their purchase". The High Court also observed further that "there is nothing on the record to show that the mischief, sought to be remedied by the amended legislation, was in existence since 1956. On the other hand, the ministerial speech, referred to above, rather indicates that the said mischief was of comparatively recent origin". Again in Kalyani Dutt 's case (supra) the High Court in para 27 observed that "such suits are not many and at the same time most of them are pending for more than ten years". The materials relied upon by the High Court stand uncontradicted by any affidavit before US. On the above materials it is safe to hold that the main object of the Amendment Actis to counteract the "recent" mischief of circumvention of theprovisions of the original Act in order to evict tenants on even bona fide requirements specified under the law of device of transfer of premises held under the occupation of tenants. Although the Amendment Act has not completely barred institutions of suits by transferee landlords postponement of litigation for a period of three years from acquisition of the premises was provided for under subsection (3A). This had a twofold purpose, namely, to enable tenants a reasonable respite to arrange their affairs and also to discourage speculative acquisitions with an ulterior motive. This salutary pro vision for the general body of tenants cannot be called unreasonable. But the question is whether by applying the provision to pending suits and appeals has that object been achieved in the interest of the general body of tenants which would certainly constitute the general public within the meaning of clause 5 of Article 19? From the fact ,; and circumstances extra fed above from the two judgments of the High Court. it is not possible to bold that the interest of the general body of tenants would be served by application of sub section (3A) to pending suits and appeals. If the mischief was of "recent" origin, there is no reason to overshoot the mark and outstretch the long rope of the law beyond the 798 requirements of the situation. It is clear that in trying to include old actions that may be surviving in courts, per chance, because of laws ' proverbial delay, section 13 of the Amendment Act has gone far in excess of the actual needs of the time and problems and the provisions thereof cannot be said to impose a reasonable restriction on the right of the transferee landlords, albeit a well defined class, amongst tile landlords, to hold and enjoy their property in the interest of the general public. Such transferee landlords with pending old sections in suits or in appeals are, as observed by the High Court, not likely to be of a large number and necessarily so the tenants of such a sub sec class. It is not in the general interest of the large body of tenants to impose such restrictions on a few transfree landlords of this sub class subject to unbearable delay in litigation, understandably not on their own account. If relief in the shape of postponement of a landlord 's suit were the object of sub section (3A) in giving retrospectivity to it, the law did not take count of the inevitable long delay that takes place in pending litigation of this type as a result of man made laws of procedure in courts such as has even been clearly demonstrated by the cases at hand. The law that misses its object cannot justify its existence. Besides, it will be a sterile relief if tenants have to face a fresh summons next day. Hard cases will be on both sides of the line. law contemplates in terms of generality and is not intended to hit a few individuals by making invidious distinction. Article 19 of the Constitution confers protection of rights specified therein belonging to all citizens. Any individual citizen may complain of encroachment of his rights and freedom guaranteed under the Article. Law 's encroachment upon such rights and freedom of citizens can survive challenge if it passes the tests laid down in the six saving clauses of Article 19. Coming now to article 19(1)(f), with which we are concerned in these appeals, the said provision confers upon each individual citizen the right to acquire, hold and dispose of property, This right is subject to clause (5) which we may read so far as material for our purpose: "Nothing in sub clauses (d), (e) and (f) of the said clause shall . prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses . in the interests of the general public. . Even a single citizen may complain against violation of his fundamental rights under Article 19 (1) (f) and his vindication of his right may be defeated only if the impugned infringement brought upon by the law can be considered as a reasonable restriction and the ,aid restriction is also in the interests of the general public. It is manifest, therefore, under the Constitution. that an individual 's right will have to yield to the common weal of the general community. That general community may be in broad segments, but even then must form a class as a whole. A few individuals cannot take the place of a class and for the matter of that the general public In the present case the particular relief contemplated by the Amendment Act is in favour 799 of tenants in general and the restriction under sub section (3A) must ,be viewed in that context. It cannot be said that the legislature in applying sub section (3A) restrospectively has achieved that avowed object at all. The matter would have been different it, in view of any prevailing conditions, a reasonable date for giving retrospective effect were fixed under the law in the light of the known mischief. In its. absence, applicability of the blanket ban to pending suits and appeals cannot be said to be a reasonable restriction in the interests of the general public. It may help a few tenants in litigation but will prejudice the right of transferee landlords locked up in old and costly litigation. The gain of the few as opposed to the general public cannot be the touchstone for justifying reasonableness of the restriction imposed on the rights of the transferee landlords in applying subsection (3A) to pending suits and appeals. In the social combat between the interests of a few and the general welfare of the community the latter is the clinching factor to be reckoned and hard cases of a few individuals cannot be assigned a higher place and status than they deserve to the detriment of the fundamental rights of even a single individual. Therefore, the retrospectivity so far as sub section (3A) is concerned with regard to institution of suits made applicable to pending suits and. appeals is clearly very wide of a reasonable mark and is, thus, an imposition of an unreasonable restriction on the rights of the transferee landlords in pending suits which had been instituted prior to the Amendment Act and in appeals arising therefrom and it is not saved by the protective clause (5) of Article 19 of the Constitution. Sub section (3A) so far as it is retrospective and as such applicable to pending suits including appeal is ultra vires Article 19 (1)(f) of the Constitution. The provision is valid only prospectively. So far as the retrospectivity of section 13(1)(f) and (ff), the position is entirely different. Clearly further reliefs have been sought to be given to the tenants as a class by these provisions in the Amendment Act. These further reliefs are in the general interests of tenants and can be applied without any difficulty to pending suits including appears. There is nothing unreasonable about such a retrospectivity in applying these provisions for the general welfare of tenants in securing for them a safe and sure tenure as far as practicable untrammelled by inconvenient litigation. It is well established that the legislature in enacting laws can legislate prospectively as well as retrospectively. Section 13(1)(f) and (ff) are, therefore, not ultra vires Article 19(1) (f) of the Constitution. With regard to another contention of the appellants that the right of tile landlords that is affected by sub section (3A) is only a mere right to sue and at best a right of reversion and hence it is not a right to property under Article 19(1)(f) of the Constitution, it is sufficient to state that the question is covered by two decisions of this Court in The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(1) and Swami (1) ; 800 Motor Transport (P) Limited and Another vs Sri Sankaraswamigal Butt and Another(1). The right to own and hold property in order to make an effective right under the Constitution must include tine right to possession of the property including the right to evict tenants in accordance with law. The submission is, therefore, without any force. The position, therefore, is that in a pending suit or even in a pending appeal a landlord may be given an opportunity to adduce evidence to establish such of the new requirements in 13(1) (f) or (ff) as are relevant to the proceedings. In that case the tenant will have also an opportunity to produce evidence in rebuttal. If the matter arises in a pending suit, it will be disposed of by the trial court. If, however, the matter arises in appeal, it will be open to the appellate court, in order to shorten the life of litigation, to remand the matter to the appropriate court to return a finding on such additional issues as may be framed to meet the requirements of (f) and/or (ff), as the case may be, under order 41, rule 25, Civil Procedure Code. In the result these appeals are partly allowed. The judgment of the High Court with regard to invalidity of sub section (3A) so far as it is retrospective and applicable to pending suits and appeals is upheld. The orders dismissing the appeals are, however, set aside and the appeals are remanded to the High Court for disposal in the light, of the observations with reference to section 13(1)(f) and/or (f) whichever is applicable. The landlords may now be given by the High Court an opportunity, if they so wish, to adduce evidence with regard to such further requirements under (f) and/or (ff) as may be applicable and the High Court will call for a finding from the appropriate court in that behalf and thereafter dispose of the appeals on merits. Since success is shared, there will be no orders as to costs in these appeals. ORDER In accordance with the majority judgment, the appeals are allowed with costs; the cases are remanded to the High Court, and the High Court is directed to dispose of the case in the light of the directions and observations made in the majority judgment. It will be open to the Court seised of the matter to direct, in its discretion, amount of costs to be incurred hereafter. P.B.R. (1) [1963] Supp. 1 S.C.R. 282.

The appellant was charged with two offences, (i) under section 307 I.P.C. with respect to one person, and (ii) under section 302/34, I.P.C. for having, along with other accused, caused the death of another. The trial court convicted him under s.324 I.P.C. on the first charge and acquitted him of the other charge. The appeal by the State against the acquittal on the second charge was allowed by the High Court and the appellant was convicted under s.302/34 I.P.C. and sentenced to life imprisonment. Allowing the appeal to this Court, HELD : (1) In the case of an appeal against an acquittal the appellate court should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction. But if the view of the trial court is not reasonably sustainable, on the evidence on record. the appellate court will interfere with the acquittal. If the High Court sets aside an acquittal and convicts, this Court has to be satisfied, after examining the prosecution and defence cases, and the crucial points emerging for decision from the facts of the case, that the view taken by the trial court, on the evidence on record, is atleast as acceptable as the one taken by the High Court, before this Court could interfere with the decision of the High Court. [521D] (a) The First Information Report is a previous statement which, strictly speaking, can be only used to corroborate or contradict the maker of it. In the present case, the F.I.R. was made by the father of the deceased to whom all the important facts of the occurrence were bound to have been communicated. But, though the F.I.R. was given about 4 hours after the incident, it was not mentioned therein that the appellant had stabbed the deceased. The omission of such an important fact affecting the probabilities of the case is relevant under s.11 of the Evidence Act in judging the veracity of the prosecution case. [522D] (b) The evidence, shows that the deceased was stabbed by one or the other accused; that the place of occurrence had been shifted by the witnesses for the prosecution; that the version of the alleged eye witnesses is not credible; and that the alleged dying declaration is unreliable. [524B D] (2) The High Court, having found that the appellant and the other accused were individually responsible for their acts, erred in finding the appellants guilty on the basis of common intention, of an offense under section 302/34 I.P.C. [524FG] (3) An appeal to this Court by the accused, in a case where his acquittal had been converted into a conviction and the sentence of life imprisonment was imposed upon him, lies as a matter of right under the , and no certificate of the High Court is necessary. [521A]

Appeals No.s. 2276 10 2278 of 1968. 33 Appeal by special leave from the judgment and order dated February 23, 1968 of the Calcutta High Court in Income tax Reference No. 158 of 1964. Jagdish Swarup, Solicitor General, T.A. Ramachandran, R.N. Sachthey and B.D. Sharma, for the appellant (in all the appeals). P. Burman, R. Ghose and Sukumar Ghose, for the respondent (in all the appeals). C.J. Shaila Behari Lal Singha hereinafter called 'the assessee ' is a shareholder of a company styled the Ukhara Estates Zamindaries Ltd. The following table sets out the amounts of dividend received by the assessee from the Company and the years in respect of which they were received : Year of Year of declaration Amount of assessment of dividend dividend 1951 52 1357 B.S. Rs. 37,125/ 1952 53 1358 B.S. Rs. 29,250/ 1953 54 1359 B.S. Rs. 28,125/ The assessee claimed that out of the amounts set out in the table only Rs. 8,669/ for the year 1357 B.S., Rs. 20,469/ for the year 1358 B.S., and Rs. 21,822/ for the year 1359 B.S. were taxable as dividend, and the remaining amounts were not taxable, since they were declared out of capital gains of the Company which comprised salami or premia received by it as consideration for grant of long term mining and other leases and as compensation for compulsory acquisition of lands for public purposes. The Income tax Officer brought the entire amount to tax declared as dividend for each of the three years in question and grossed up the amounts under section 16(2) of the Income tax Act, 1922. In appeal, the Appellate Assistant Commissioner held that the entire amount for each year was income in the hands of the assessee, but only a part of it being dividend, within the meaning of section 2(6A) of the Income tax Act, 1922, was liable to be grossed up. In second appeal, the Appellate Tribunal held that part of the amount distributed which was attributable to salami received by the Company for the grant of longterm leases was not taxable as dividend, but as income of the assessee from "other sources". 34 The Tribunal then referred under section 66(1) of the Indian Income tax Act, 1922, three questions to the High Court of Calcutta the first two questions were referred at the instance of the assessee, and the third question at the instance of the Commissioner : "(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the distribution to the assessee of the amount attributable to land acquisition compensation received by the Ukhara Estate Zamindaries (P) Ltd., after the 31st March, 1948, was in the hands of the assessee, receipt of dividend within the meaning of section 2(6A) of the Indian Income tax Act, 1922? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the receipt by the assessee of the amount attributable to salamis realized by the Ukhara Estate. Zamindaries (P) Ltd. for grant of long term leases after the 31st March, 1948, was a receipt of income in the hands of the assessee and taxable as the income of the assessee from other sources ? (3) Whether, on the facts and in the circumstances of the case, the distribution to the assessee of the amount attributable to, salamis realised by the Ukhara Estate Zamindaries (P) Ltd. for grant of long term leases after the 31st March, 1948, was not in the hands of the assessee receipt of dividend within the meaning of section 2(6A) of the Indian Income tax ACt, 1922 ?" The High Court recorded answers on all the questions in the negative, following their earlier judgments in Income tax References Nos. 131 of 1961 and 3 of 1964. The High Court however observed that it was agreed between the parties that the answers in the negative on all the questions were subject to the final decision in appeals filed against the orders made in Income tax References Nos. 131 of 1961 and 3 of 1964 and pending in this Court. In our judgment, even with the consent of the parties, the learned Judges could not dispose of the reference in the manner they have done. They had to record their answers and their reasons in support of the answers: those answers were, insofar as the High Court was concerned, final. They could not stand modified by reason of any judgment in other cases decided by this Court. Apart from the technical defect that the High Court has not recorded final answers, the order is subject to another infirmity. The High Court had to decide on the facts of each case 35 whether any amount of salami was capital gain, and whether any part of the compensation received for compulsory acquisition of land was capital gain. Prima facie, receipt of compensation for land compulsorily acquired which forms part of the fixed assets of a Company is of a capital nature: Senairam Doongarmall vs Commissioner of Income tax, Assam(1), but interest which is statutorily payable on compensation is income and is not capital gain: Dr. Shamlal Narula vs Commissioner of Income tax, Punjab, Jammu and Kashmir, Himachal Pradesh and Patiala(2). The assumption made that the entire amount of compensation is deemed to be capital gain cannot therefore be sustained. It is also, necessary to observe that in Appeals Nos. 737 to 739 of 1968 and 13 of 1968 and 1621 of 1968 which arose out of Reference No. 131 of 1961 and other references, decided by this Court on July 25, 1969, the only question of law raised was whether distribution of dividend out of capital gains was taxable. The scope of enquiry in this group of cases, in view of the form of the questions, is more extensive. In appeals Nos. 737 to 739 of 1968 we held that, having regard to the Explanation to section 2(6A) capital gains arising after 31st day of March, 1948 (and before the 1st day of April, 1956) were not part of accumulated profits, and if dividend be distributed to the shareholders of the Company out of those capital gains, to ' the extent of the distribution out of the capital gains the dividend must be deemed exempt from liability to tax under section 12 as dividend income liable to tax. In that case we could not consider whether the receipt from the capital gains was still income liable to tax from "other sources" (not being dividend) under section 12 of the Indian Income tax Act, for no such question was referred. But that question has been expressly referred in this case. The order passed by the High Court is therefore set aside and the case is remanded to the High Court for disposal according to law. There will be no order as to costs in this Court. Costs in the High Court will be costs in the references.

The appellant, the owner of a permanent cinema theatre in the Tanjore District, was granted a license by the District Magistrate, Tanjore, subject to certain conditions imposed by him in pursuance of 2 notifications (G. 0. 1054, Home, dated 28th March, 1948, and G. O. Mis. 3422 dated 15th September, 1948) issued by the State of Madras purporting to act in exercise of powers conferred by section 8 of the Cinematograph Act (II of 1918). The impugned conditions inter alia were as follows: " 4(a) The licensee shall exhibit at each performance one or more approved films of such length and for such length of time, as the Provincial Government or the Central Government may, by general or special order, direct. 687 special condition 3. The licensee should exhibit at the commencement of each performance not less than 2,000 feet of one or more approved films. " Held, that condition No. 4(a) and special condition No. 3, imposed unreasonable restrictions on the right of the licensee to carry on his business and were void as they infringed the fundamental right of the appellant guaranteed to him under article 19(1) (g) of the Constitution.

Appeal No. 195 of 1955. Appeal from the judgment and order dated the 30th day of December 1953 of the Nagpur High Court in Miscellaneous Civil Case No. 35 of 1952. Kirpa Ram Bajaj, Hardyal Hardy, with him) for the appellant. C. K. Daphtary, Solicitor General of India (G. N. Jo8hi and R. H. Dhebar, with him) for the respondent. February 17. The Judgment of the Court was delivered by DAS C.J. This is an appeal from the judgment and order passed by a Bench of the Nagpur High Court on the 30th December, 1953 in Miscellaneous Civil Case No. 35 of 1952, whereby the Bench answered in the negative the question that had been referred to them by the Income Tax Appellate Tribunal, Bombay under section 66(1) of the Indian Income Tax Act, 1922 (hereinafter referred to as the Act). In connection with the assessment for the assessment year 1949/1950 of Dulichand Laxminarayan, an unregistered firm, an application was made under section 26 A of the Act before the Income Tax Officer, Raigarh for its registration as a firm constituted under a Deed of Partnership dated the 17th February 1947. In the opening paragraph of that deed the names and descriptions of the parties thereto were set out in the following words: "We, Dulichand Laxminarayan Firm, through Malik (partner) Laxmi Narayan son of Laljimal, Laxmi Narayan Chandulal Firm through Malik (partner) Chandulal son of Nanakchand, Mulkhram Bholaram Firm through Malik (partner) Tekchand son of Bholaram, Jeramdas Hiralal Firm through 157 Malik (partner) Beharilal son of Asharam and Mangatrai Ganpatram through Malik (partner) Ganpatram son of Mangatrai, Agarwar Bani, aged 50, 40, 28, 25, 45 residing at Raigarh are partners in equal shares with effect from 5 1 1946 in the firm Dulichand Laxminarayan in whose name Importers ' Licence of cloth is issued for Raigarh State group Raigarh, Jaipur Saraigarh, Udeypur and Sakti State, on the following terms and conditions. . . . Then follow 15 clauses containing the terms on which the partnership business was agreed to be done. At the foot of the deed signatures were appended in the following order one below the other: Laxminarayan for Dulichand Laxmi Narayan. Beharilal for Jairam Das Hiralal. Ganpatram for Mangatrai Ganpatram. Tekchand for Mukhram Bholaram. Chandulal for Laxminarayan Chandulal. It is common ground that out of the five constituent parties Dulichand Laxminarayan, Jairamdas Hiralal and Laxminarayan Chandulal are separate firms constituted under three separate deeds of partnership and that Laxminarayan, Beharilal and Chandulal, who signed the deed on behalf of those firms are partners in their respective firms. There is also no dispute that Mukbram Bholaram is the name of a business carried on by a Hindu undivided family of which Tekchand, who has signed for it, is the Karta. It is also conceded that Mangatrai Ganpatrai is an individual. The application for registration was signed by the same five individuals who bad signed the deed of partnership. Finding that Dulichand Laxminarayan constituted under the aforesaid Deed of Partnership dated the 17th February 1947 consisted of three firms, one Hindu undivided family business and one individual and taking the view that a firm or a Hindu undivided family could not as such enter into a partnership with other firms or individuals, the Income Tax Officer held that the said Dulichand Laxminarayan could not be registered as a firm under section 26 A and 21 158 accordingly on the 26th February 1950 he rejected the application. On appeal the Appellate Assistant Commissioner held that when a firm entered into a partnership with another firm the result in law was that all the partners of each of the smaller firms became partners of the bigger firm and, therefore, there was no legal flaw in the constitution of the bigger firm of Dulichand Laxminarayan. He, however, took the view that, as the application for registration had not also been signed personally by all the partners of those three smaller firms as required by section 26 A of the Act and rule 2 of the Rules framed under section 59 of the Act, there was no valid application for registration and consequently the firm could not be registered. The result was that on the 5th August 1950 the Appellate Assistant Commissioner dismissed the appeal. The assessee appealed to the Income Tax Appellate Tribunal. The Tribunal agreed with the Appellate Assistant Commissioner that a valid partnership had been brought into existence but reversed the decision of the Appellate Assistant Commissioner on the ground that as all the five executants of the deed had signed the application for registration, the requirements of law had been satisfied. Accordingly on the 12th June 1951 the Tribunal directed registration of the firm. On the application of the Commissioner of Income Tax, Madhya Pradesh the Tribunal under section 66(1) of the Act drew up a Statement of Case and submitted to the High Court of Nagpur the following question of law, namely: Whether on the facts of the Case the assessee is entitled to registration under section 26 A of the Income Tax Act? The reference came up for hearing before a Bench of the Nagpur High Court on the 30th December 1953. Following their own judgment delivered earlier in the day in Miscellaneous Civil Case No. 189 of 1951, Jabalpur Ice Manufacturing Association vs Commissioner of Income Tax, Madhya Pradesh and Bhopal(1), (1) 159 the High Court answered the referred question in the negative. In view, however, of the importance of the question involved in the reference the High Court, under section 66 A(2) of the Act, gave a certificate of fitness for appeal to this Court. Hence the present appeal. Section 26 A of the Act under which the application for registration was made provides as follows: (1) Application may be made to the Income tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this Act and of any other enactment for the time being in force relating to income tax or supertax. (2) The application shall be made by such person or persons, and at such times and shall contain such particulars and shall be in such form, and be varied in such manner, as may be prescribed; and it shall be dealt with by the Income tax Officer in such manner as may be prescribed. The relevant portion of rule 2 of the Rules made under section 59 of 'the Act runs thus: "Any firm constituted under an Instrument of Partnership specifying the individual shares of the partners may, under the provisions of section 26 A of the Indian Income tax Act, 1922 (hereinafter in these rules referred to as the Act), register with the Income tax Officer, the particulars contained in the said Instrument on application made in this behalf. Such application shall be signed by all the partners (not being minors) personally, or. . . At the hearing before us it was at one time suggested that the partners of the firm consisted of the five individuals who had signed the deed and each of them had an ' equal share as specified therein and that as all the said five partners had signed the application for registration the requirements of section 26 A of the Act and rule 2 had been fully complied with and the assessee should have been registered as a firm for the purposes of the Act. A perusal of the deed and par 160 ticularly the portions hereinbefore set out indicate beyond any doubt that the intention of the parties quite clearly was that each of the three constituent firms and not the particular member of each of the said three firms who had signed the deed for his respective firm was to be the partner in the bigger firm constituted under this deed. The contention that only the five individual executants of the deed were the partners of the newly created firm runs counter to the apparent tenor of the deed and cannot be entertained. Indeed learned counsel appearing in support of this appeal did not press this point. The main argument before us has centred round the larger question as to whether a firm as such can be a partner in another firm. Section 26 A of the Act quoted above postulates the existence of a firm, for otherwise no question of its registration can possibly arise. The Act, however, does not indicate what a firm signifies or how it is to be constituted. Indeed section 2(6B) of the Act clearly provides,inter alia, that "firm" and "partnership" have the same meanings respectively as they have in the . We have, therefore,, to go to the last mentioned Act to ascertain what a firm is and how it can be created. Turning, then, to the we come to section 4 which defines 'partnership", "partner", "firm" and "firm name" in the words following: 4. Definition of "Partnership", "Partner", "firm" and "firm name: "Partnersbip" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually "partners" and collectively "a firm", and the name under which their business is carried on is called the "firm name". This section clearly requires the presence of three elements, namely (1) that there must be an agreement entered into by two or more persons; (2) that the agreement must be to share the profits of a business; 161 and (3) that the business must be carried on by all or any of those persons acting for all. According to this definition "persons" who have entered into partnership with one another are collectively called a "firm" and the name under which their business is carried on is called the "firm name". The first question that arises is as to whether a firm as such can enter into an agreement with another firm or individual. The answer to the question would depend on whether a firm can be called a "person". There is no definition of the word "person" in the Partnership Act. The , however, by section 3 (42) provides that "person shall include any company or association or body of individuals whether incorporated or not". The firm is not a company but is certainly an association or body of individuals. The argument is that applying that definition to the word "persons" occurring in section 4, one can at once say that an unincorporated association or body of persons, like a firm, can enter into a partnership just as by the application of that definition to section 4 of the a company can become a partner in a firm. The definitions given in section 3 of the , however, apply when there is nothing repugnant in the subject or context. It is difficult to say that there is anything repugnant in the context of section 4 itself which will exclude the application of that definition to the word "Persons" occurring in section 4. Is there, however, anything repugnant in the subject of partnership law, which will exclude the application of that definition to section 4? As pointed out in Lindley on Partnership, llth Edition, at page 153, merchants and lawyers have different notions respecting the nature of a firm. Commercial men and accountants are apt to look upon a firm in the light in which lawyers look upon a corporation, i.e., as a body distinct from the members composing it. In other words merchants are used to regard a firm, for purposes of business, as having a separate and independent existence apart from its partners. In some systems of law this separate per 162 sonality of a firm apart from its members has received full and formal recognition, as, for instance, in Scotland. That is, however, not the English Common Law conception of a firm. English Lawyers do not recognize a firm as an entity, distinct from the members composing it. Our partnership law is based on English Law and we have also adopted the notions of English lawyers as regards a partnership firm. Some of the mercantile usages relating to a firm have, however, found their way into the law of partnership. Thus in keeping accounts, merchants habitually show a firm as a debtor to each partner for what he brings into the common stock and each partner is shown as a debtor to the firm for all that he takes out of that stock. But under the English Common Law, a firm, not being a legal entity, could not sue or be sued in the firm name or sue or be sued by its own partner, for one cannot sue oneself. Later on this rigid law of procedure, however, gave way to considerations of commercial convenience and permitted a firm to sue or be sued in the firm name, as if it were a corporate body (see Code of Civil Procedure, Order XXX corresponding to rules of the English Supreme Court Order XLVIII A). The law of procedure has gone to the length of allowing a firm to sue or be sued by another firm having some common partners or even to sue or be sued by one or more of its own partners (see Order XXX, rule 9 of the Code of Civil Procedure), as if the firm is an entity distinct from its partners. Again in taking partnership accounts and in administering partnership assets, the law has, to some extent, adopted the mercantile view and the liabilities of the firm are regarded as the liabilities of the partners only in case they cannot be met and discharged by the firm out of its assets. The creditors of the firm are, in the first place, paid out of the partnership assets and if there is any surplus then the share of each partner in such surplus is applied in payment of his separate debts, if any, or paid to him. Conversely, separate property of a partner is applied first in the payment of his separate debts and the surplus, if any is utilised in meeting the 163 debts of the firm (see section 49 of the ). In the Indian Income Tax Act itself a firm is, by section 3, which is the charging section, made a unit of assessment. It is clear from the foregoing discussion that the law, English as well as Indian, has, for some specific purposes, some of which are referred to above, relaxed its rigid notions and extended a limited per,personality of a firm. Nvertheless, the general concept of partnership, firmly established in both systems of Law, still is that a firm is not an entity or "person" in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words, a firm name is merely an expression, only a compendious mode of designating the persons who have agreed to carry on business in partnership. According to the principles of English jurisprudence, which we have adopted for the purposes of determining legal rights "there is no such thing as a firm known to the law" as was said by James, L. J. in Ex parte Corbett, In re Shand(1) In these circumstances to import the definition of the word "person" occurring in section 3(42) of the into section 4 of the will, according to lawyers, English or Indian,, be totally repugnant to the subject of partnership law as they know and understand it to be. It is in this view of the matter that it has been consistently held in this country that a firm as such is not entitled to enter into partnership with another firm or individuals. It is not necessary to refer in detail to those decisions many of which will be found cited in Jabalpur Ice Manufacturing Association vs Commissioner of Income tax, Madhya Pradesh(2) to which a reference has already been made. We need only refer to the case of Bhagwanji Morarji Goculdas vs Alembic Chemical Works Co. Ltd and others(3), where it has been laid down by the Privy Council that Indian Law has not given legal personality to a firm apart from the partners. This (1) , 126. (2) (3) 164 view finds support from and is implicit in the observations made by this Court in the Commissioner of Income Tax, West Bengal vs A. W. Figgies & Co. and others(1). In Jai Dayal Madan Gopal(2), Sulaiman C. J. followed the Calcutta decisions and was not prepared to dissent from the view that the word "person" in section 239 of the should not be interpreted so as to include a firm. The learned Chief Justice, however, expressed the view that it was difficult to say that there was anything in section 239 itself which made the application to that section of the definition of "person" as given in in any way repugnant. The learned Chief Justice, however, does not appear to have con sidered whether there was anything repugnant in the subject of partnership law, as it prevails in this country, which operates to exclude the application of that deanition to the word "person" occurring in section 239 of the . In our opinion, the word "Persons" in section 4 of the , which has replaced section 239 of the , contemplates only natural or artificial, i.e., legal persons and for the reasons stated above, a firm is not a "person" and as such is not entitled to enter into a partnership with another firm or Hindu undivided family or individual. In this view of the matter there can arise no question of registration of a partnership purporting to be one between three firms, a Hindu undivided family business and an individual as a firm under section 26 A of the Act. The learned Advocate for the appellant then urges that at any rate the partnership was not illegal, for there was no legal impediment in the way of all the members of all the three constituent firms and the karta of the Hindu undivided family and the individual entering into an agreement and that, therefore, a valid partnership was constituted by the deed of partnership under consideration. Assuming that this contention is possible in view of the language which (1) ; ; (2) 165 has been used in this deed for describing the parties, the position of the appellant will not improve, for in order to be entitled to the benefit of registration under the Act, it will have to be shown that the shares of all individual partners are specified in the deed and that all the partners have personally signed the application for registration as required by section 26 A of the Act read with Rule 2. The deed specifies that each of the five constituent parties is entitled to an equal, i.e., 1/5 share but it does not specify the individual shares of each of the partners of each of the three smaller constituent firms. Further all the members of those three firms have not signed the application for registration personally. It is said that each of the three persons who executed the deed for the three smaller firms must be regarded as having the authority of their co partners in their respective firms to sign the application for registration just as they had their authority to execute the deed itself for them. Even if they had such authority as to which there is no evidence at all on the record the section and rule 2 require that each partner (not being minors) must sign personally. That admittedly has not been done, and., therefore, the application was not in proper form. In our judgment the answer given by the High Court to the question is correct. This appeal must, therefore, be dismissed with costs.

HELD: Section 7 read with Section 16 of the Prevention of Food Adulteration Act is constitutionally valid. [257G] Policy is for Parliament, constitutionality is for the Court. Protection of public health and regulation of noxious trade belong to the police power of the State and Legislation like the Prevention of Food Adulteration Act is of that genre. [256F G] If a sentence, as in the instant Act, is prescribed as a mandatory minimum and that is too cruel to comport with article 21 and too torturesome to be reasonably justifiable or socially defensible under Article 19, then a case for judicial review may arise. [256 G H] Judge proof sentencing is not per se bad. Sometimes judicial fluctuations in punishment, especially on the softer side where white collar criminals are involved, induce legislative standardization of sentences, to avoid giving societal protection in hostage to fortune. There is a wide play still left for the Court, and mandatory minima are familiar from the days of the Penal Code. [256H, 257A] The prescription of equal protection is not breached either, because within the range of judicial discretion the Court deals out to each what he deserves according to established principles. [257B] Observation (a) Public authorities entrusted with the enforcement of regulatory provisions to protect society may, in proper cases, examine those prosecutions which are harassments to the humbler folk even if they technically violate the law and cause only minimal harm to society and decide whether they should at all sanction their prosecution. [257D E] (b) The Legislature, in its wisdom, may also consider the advisability of resting power somewhere to reduce the sentence without the bigger offender escaping through these wider meshes meant for the smaller offenders. Even otherwise, there is a general power in the Executive to commute sentences and such power can be put into action on a principled basis when small men get caught by the law. [257E F] 256